EFF takes Viacom to task over YouTube takedown

A watchdog group is encouraging those wrongly accused of posting pirated Viacom material on YouTube to stand up to the giant conglomerate--even if it means a court fight.

Two weeks ago, when Viacom demanded that YouTube remove 100,000 videos featuring unauthorized clips of its films or TV shows, some innocent users got caught up in the sweep, said the Electronic Frontier Foundation (EFF), an advocate for the rights of Internet users. In a video posted to YouTube last week, EFF said it wanted to hear from anyone who may have been unfairly blamed.

Two such examples include the removal of a homemade movie of a group of friends eating ribs and a trailer for a documentary about a gay professional wrestler, both of which contained no Viacom copyrighted material, EFF said.

EFF compared Viacom's actions to fishermen who cast a wide net and mistakenly trap a porpoise. The group suggested in a note on its Web site that some of those accused of copyright violations may need legal help.

"It may make more sense to go to court to assert your rights," EFF attorney Fred von Lohmann wrote on the organization's site.

The controversy, which followed the takedown of an unprecedented number of YouTube videos, is the latest example of how rules for digital media in an emerging user-generated culture are often made up on the fly. It also illustrates the many pitfalls confronting media companies as they attempt to maintain control of their digital content.

"The question we need to ask is do we have the right mechanism to balance the needs of corporate content creators, intermediaries like Google and YouTube, and users," said John Palfrey, professor of Internet law at Harvard Law School.

Defamed by takedown?
Viacom, which said only 60 or 70 videos were mistakenly deemed copyright violations, isn't the only organization tripping over its copyright policies. YouTube apparently threw salt in the wounds of those wrongly accused of copyright violation by leaving misleading messages on the Web pages where the pulled-down videos once appeared.

"This video has been removed at the request of copyright owner Viacom International because its content was used without permission," read a copy of one of the messages obtained by CNET News.com. YouTube in recent days has changed the message to read that a video was removed because of a copyright "claim" by Viacom.

No one is likely to be surprised by Internet and traditional media companies stumbling as they take their first steps into the nascent online video segment. But the learning process may be hardest on their customers and users.

"That note said to anyone looking for my trailer that I violated someone's copyright. And that isn't true. That's where they defamed me."

--Victor Rook, filmmaker mistakenly accused of copyright violation

Victor Rook, an independent filmmaker for 25 years whose promo for the gay wrestler documentary was mistakenly removed, said he worries whether his reputation was damaged by the note posted by the Google-owned YouTube.

"That note said to anyone looking for my trailer that I violated someone's copyright," Rook said. "And that isn't true. That's where they defamed me."

A YouTube representative declined to comment for this story. Michael Fricklas, Viacom's executive vice president and general counsel, said the company had nothing to do with choosing the wording of the messages on YouTube. He said that Viacom regrets misidentifying any of the videos and noted that the company is moving quickly to correct errors.

It's important to note, Fricklas said, that the company did not go after everyone who threw in a couple of seconds from The Daily Show or The Colbert Report to create a "mashup."

"We took a very conservative and limited view of fair use," Fricklas said. "Legally we could have taken down many more clips, but we only wanted to move on clips that were clearly infringing. Nearly all of the clips removed were clips ripped straight from our broadcast."

Fricklas was referring to instances when YouTube users posted videos featuring entire skits or big chunks from Viacom-owned TV shows. U.S. copyright law allows people to use copyrighted material for specific reasons, such as creating art, criticism or study. But the law also says the use must not limit the copyright owner's ability to sell the material.

EFF spokeswoman Rebecca Jeschke says lawyers in her organization want to make sure that Viacom didn't go after people with legitimate fair-use claims.

"Clearly, YouTube can take down whatever clips it wants," Jeschke said. But if Viacom uses the (Digital Millennium Copyright Act) to issue take-down notices, then that's a legal proceeding. If they are wrong, then there are ways you can answer that."

Viacom executives have pointed out that the process of removing clips--or preventing them from going up in the first place--would be far easier if YouTube had a filtering technology. The San Bruno, Calif.-based company promised to roll out such a technology by the end of 2006 but it has yet to materialize.

That hasn't stopped other media companies from partnering with YouTube, which has struck content-licensing deals with CBS, Warner Bros. Music Group and Sony BMG. Some analysts believe that eventually YouTube and Viacom will also come to an agreement.

Meanwhile, Rook must wait until someone at YouTube or Viacom sorts out his situation. Nearly two weeks have gone by since he sent a certified letter to YouTube explaining his situation and offering proof his video hasn't violated copyright law.

"It's kind of a waiting game now," Rook said. "Each day that my video is down is another day that some network doesn't know about my work."