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Fair-Use Showdown at the YouTube Corral

The take-down provision of the Digital Millennium Copyright Act is under attack on two fronts, both involving videos posted to and then removed from YouTube. The DMCA says that a Web host is protected from copyright liability if it removes material alleged to be infringing. Critics say YouTube is too quick on the trigger even in the face of a legitimate claim of fair use.

Brooklyn Law School visiting professor Wendy Seltzer launched the first foray. As a lesson for her law students, she clipped the NFL's copyright notice out of the Super Bowl broadcast and posted it to YouTube -- the copyright notice, not the game. Within five days, YouTube removed it, notifying her that the NFL claimed the clip infringed its copyright. In adherence to the DMCA's counter-notification process, Seltzer sent YouTube a counter-notice, asking it to restore the video, which it did. But the NFL again demanded that YouTube remove the video, and, once again, it complied. (Seltzer has compiled all her blog posts detailing this saga on a single page of her blog.) Yesterday, Seltzer told the Wall Street Journal's Law Blog that she has not decided whether to sue the NFL, adding, "I could be persuaded that this is a good test case to make."

But litigation is underway on another front. The Electronic Frontier Foundation today announced that it has asked a federal court to protect the free speech rights of and Brave New Films after YouTube removed their video, "Stop the Falsiness," a satire poking fun at Stephen Colbert's Comedy Central show, "The Colbert Report." YouTube removed the video in response to a take-down demand from Viacom, parent of Comedy Central. In the EFF announcement, staff attorney Corynne McSherry said:

"Our clients' video is an act of free speech and a fair use of 'Colbert Report' clips. Viacom knows this -- it's the same kind of fair use that 'The Colbert Report' and 'The Daily Show' rely upon every night as they parody other channels' news coverage."

For further reading about the two battles, see:

Posted by Robert J. Ambrogi on March 22, 2007 at 05:19 PM | Permalink | Comments (3)


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