Jim Moore has received a cease and desist letter from Viacom for a home video that he shot. (I love Jim, but the video’s pretty bad. Highly unlikely to be affecting any market that Viacom cares about, among other things.) The DMCA’s Section 512 has a provision that allows for counter-notification for people, like Jim, who believe that their works that do not infringe copyright have been taken down without cause. Of course, there might be *something* in a home video that is infringing someone else’s rights; perhaps; but no court is making this decision. It’s one company (Viacom) writing to another company (Google/YouTube) and poof — the video is gone, off the web. No judge, no jury. I have to say that I don’t blame YouTube for complying quickly with the demand, as the law makes them more or less blameless if they do so, even if that policy hurts their users.
The operative question related to this 100,000 c&d day: How many Jim Moores are out there?
And take a look at the page where the video used to be. The take-down notice results in language that reads: “This video has been removed at the request of copyright owner Viacom International Inc. because its content was used without permission.” Really? Watch the video for yourself. It sure looks like that assertion is untrue.
Viacom should recall what happened to Diebold when they over-reached on copyright. The DMCA can also provide for damages back to the legitimate copyright holder when someone’s cease-and-desist letter falsely accuses them. The relevant language reads:
“(f) Misrepresentations.— Any person who knowingly materially misrepresents under this section—
(1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.”
Stipulate that Jim Moore holds all rights in his video, and Viacom none. And stipulate further that Jim Moore is far from alone. One presumes that Viacom’s argument is that they did not issue these misrepresentative notices “knowingly.” I wonder how many home videos have to have been caught up — and taken down — in this sweep before one could say that it was “knowing” on the part of Viacom? Combine that with the mash-ups that may include some of Viacom’s material, but where a fair use analysis will vindicate the alleged infringer. Could a human being have looked at each of these 100,000 videos? Might a court say: “You ought to have known that if you crank these notices out automatically and not checking each one, you must know there’s some non-infringing material in there”?
John Palfrey 