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As discussed above,
EFF and CIS filed a complaint in the Northern District of California alleging that Viacom knowingly materially misrepresented to YouTube in a takedown notice that a video produced by MoveOn.org and Brave New Films was infringing.
The video was a spoof political attack ad aimed at the Comedy Central show TheColbert Report
and its faux cable-news anchorman Stephen Colbert. This complaint was filed in the midst of a larger lawsuit filed by Viacom against YouTube and its parent company, Google, for massive amounts of infringement.
The video at issue, Stop the Falsiness,
jokingly criticizes Colbert, who refers to himself as “a steamroller of truth” that knows the “truthiness”
of things based on gut instinct. The video asks “what if [Colbert's] gut is lying?” It also calls Colbert a “shrill, partisan, anti-bear extremist” and a “threat to journalism.”
At one point in the video, an activist says, “truthiness Stephen, it's more like falsiness.” The entire video is an obvious joke. TheColbert Report itself is a satirical half hour of laughs that critiques right wing media personalities like Fox News' Bill O'Reilly and Sean Hannity by portraying Colbert as an outrageously conservative purveyor of “truthiness,” and the video was seeking to ride the show's coattails and thereby present a more effective political message. Nevertheless, the video did contain multiple clips from TheColbert Report, a Viacom property that is a frequent target of wholesale infringement on YouTube.
When YouTube removed the video from its website in response to one of over one hundred thousand total takedown notices sent by Viacom,
MoveOn.org and Brave New Films enlisted EFF and CIS to object on their behalf. Rather than contacting Viacom to discuss the takedown notice or filing a counternotice, EFF and CIS filed suit on March 21, 2007. The complaint sought declaratory and injunctive relief as well as damages under § 512(f).
The following day, Viacom sent a response letter to EFF and CIS. The letter indicated that Viacom had no record of requesting the removal of the video, and that it had “no problem” with the use of the clips in the video.
However, Viacom stated that “compliance with the DMCA process, or, at least, a communication directly to [Viacom] about the clip to ascertain [Viacom's] position would have been less wasteful of scarce judicial resources.”
Viacom subsequently discovered that the video was removed by YouTube in response to a Viacom takedown notice.
Viacom informed EFF and CIS that the takedown notice mistakenly targeted the video and agreed to provide information regarding fair use and counternotices on its website, thanking EFF and CIS for their “help in making sure [Viacom's] policies are state of the art and respectful of situations where it appears that good faith end users are entitled to the fair use defense.”
In addition, Viacom stated that “[r]egardless of the law of fair use, [Viacom has] not generally challenged users of Viacom copyrighted material where the use or copy is occasional and is a creative, newsworthy or transformative use of a limited excerpt for non-commercial purposes.”
Because Viacom reached an agreement with EFF and CIS and their clients, the case was voluntarily dismissed.
However, complaints involving claims under § 512(f) for takedown notices in which the material at issue may be noninfringing based on a fair use defense are becoming more commonplace.
Thus, it is important to analyze the merit of such claims under the applicable legal standard as announced in Rossi, and the MoveOn.org v. Viacom dispute is a great example case to analyze.
The complaint filed by EFF and CIS alleged that Viacom had violated the knowing material misrepresentation standard because Viacom “knew or should have known” that Stop the Falsiness was a “self-evident fair use.”
This allegation is problematic for two reasons. First, as discussed above, the Diebold court's holding that a “knew or should have known” standard satisfies § 512(f) is no longer good law after the Ninth Circuit interpreted § 512(f) to require “actual knowledge” that material is noninfringing.
Second, it is virtually impossible for a copyright owner or a user of copyrighted material, or either party's counsel for that matter, to have actual knowledge that a use is fair prior to litigating the issue.
There is, quite simply, no such thing as a “self-evident fair use.” Thus, under Rossi, a copyright owner cannot violate the knowing material misrepresentation standard of § 512(f) even if activity that the copyright owner maintained was infringing in a takedown notice is subsequently determined to be fair by a court. A brief overview of the fair use doctrine supports this conclusion as well.
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