The suit, filed by the Electronic Frontier Foundation in federal court in San Francisco, accuses Viacom of filing a baseless copyright complaint and takedown notice on YouTube, and infringing on the free-speech rights of the makers of the video--activist group MoveOn.org Civic Action and Brave New Films.
The tongue-in-cheek clip, "Stop the Falsiness," uses snippets from The Colbert Report, a program on Viacom's Comedy Central, for parody. That approach, the EFF said, is permissible under the "fair use" provisions of the Digital Millennium Copyright Act, just as The Colbert Report uses excerpts from real news shows in its segments.
"If you watch this clip for 10 seconds it is clear that it's a parody and it is fair use," said Corynne McSherry, staff attorney at the EFF, which is working on the case with Stanford University's Center for Internet and Society.
Under the DMCA, service providers like YouTube, which is owned by Google, are immune from copyright suits if they respond quickly to takedown notices filed by content owners.
However, Viacom says that of the 160,000 takedown notices it has sent out, none of them targeted the "Falsiness" video.
"Your complaint is the first information we have received about this clip. We have reviewed our takedown notices, and have found no record of a takedown notice with respect to this clip," Michael Fricklas, general counsel at Viacom, wrote in a letter to the EFF. "We maintain careful records of all of our takedown notices, so any takedown notice most likely did not come from us."
Viacom reviewed the clip on the "Stop the Falsiness" Web site and has no problem with having it viewed on YouTube or anywhere else, Fricklas said.
McSherry of the EFF said YouTube confirmed that Viacom sent the takedown notice on the clip before the lawsuit was filed. "It may be that (Viacom's) records are confused" given the vast number of takedown notices that they have sent, she said. "I am pleased that Viacom recognizes that MoveOn.org and Brave New Films are allowed to do exactly the same thing that Stephen Colbert does every night, which is engage in parody."
McSherry said she could not say whether the lawsuit would be dropped or not. "As far as we are concerned, at this point we still have a lawsuit pending," she said. "(The clip) was still taken down in the first place. Damage was done."
YouTube itself declined to comment directly on whether Viacom had sent the takedown notice.
The suit seeks damages and attorneys' fees, as well as an order allowing the video to be reposted to YouTube. The EFF also has sent a counter notice to YouTube alleging that Viacom's takedown notice was illegal; if YouTube agrees, the video could re-appear on the site within 10 days, McSherry said.
MoveOn.org Civic Action posted the video to YouTube in August and noticed about two weeks ago that it had been removed from the video-sharing site, according to McSherry.
Viacom has been aggressive in getting its content removed from YouTube,in February and last week.
In another recent DMCA case, the EFF , who forced Web sites to remove a screenshot showing his face from a TV news show he appeared on. However, unlike the Viacom case where the media company owns the copyright to the video snippets in question, McSherry said, Crook did not own the copyright for the video in which he appeared.