EFF Makes Viacom Cry Uncle On Fair Use

    April 23, 2007
    WebProNews Staff

We’ve said it before: It’s not a good idea to eff with the EFF (Electronic Frontier Foundation). Now that Viacom has admitted it effed up by ordering the take down of a parody on YouTube, the EFF and Stanford Law’s Fair Use Project (FUP, or as they collectively should be known, EFF-FUP) have dismissed their lawsuit.

Yes, that was a long way to go for an effing pun.

The parody in question was designed and posted by MoveOn.org Civic Action and Brave New Films (BNF, and in light of previous failed jokes, I’m not touching that one). "Stop the Falsiness," a tongue-in-cheek video response to "The Colbert Report’s" own tongue-in-cheek parody of MoveOn.org.

Viacom, who owns Comedy Central where political satire show airs, didn’t like all that cheekiness one bit, and included the clip in the flurry of DMCA takedown notices (an action informally known as F-YouTube-Up, but for different reasons — that’s so not true, I don’t want any of these lawyers calling me). 

On behalf of BNF and MoveOn, EFF-FUP filed suit against Viacom in federal court last month, calling the parody’s removal of the clip "meritless." Though the video included clips from "The Colbert Report," EFF-FUP et alia maintained the clips were fair use, as they were being used for creative, newsworthy, or transformative non-commercial purposes.

"If copyright owners are going to be sending hundreds of thousands of DMCA takedown notices, they also have a responsibility to protect the legitimate free speech rights of the citizen creators who rely on platforms like YouTube," said EFF Senior Intellectual Property Attorney Fred von Lohmann

Viacom initially denied sending the DMCA takedown notice, but due to "flaws" in their recordkeeping, acknowledged that one was issued. The company has retracted its copyright infringement claim, and has agreed to set up a website and email hotline for people who feel Viacom has erred in sending them notice.

The company promises a review within one business day and to reinstate if the takedown request was in error. In a letter to the EFF, executive vice president and general counsel for Viacom, Michael D. Fricklas, called the company’s approach to fair use issues "conservative."

Fricklas said Viacom has reviewed 1.6 million clips manually and has found fewer than 0.01% of the cases to be in error.

"The best way to reduce the error rate," said Fricklas in the letter, "is for YouTube to accept responsibility to implement a compliance program to review clips at the time of the upload."

That’s lawyer-speak for ‘it’s still not our fault, but we’ll play along for good measure.’ Viacom has agreed to uphold fair use principals when it deals with online video content, and "Stop the Falsiness" is once again on YouTube.
"This new endorsement of Internet users’ rights is a victory for the little guy," said Eli Pariser, Executive Director of MoveOn.org Civic Action.

"Online sites like YouTube have revolutionized political expression and can give the little guy an audience of millions for a political point of view. A corporate powerhouse like Viacom must not be allowed to erase political content or muzzle political expression."

According to Viacom senior vice president and deputy general counsel Mark C. Morril, Viacom expects to add the following language to its corporate website:

"Regardless of the law of fair use, we have not generally challenged uses or Viacom copyrighted material where the use of copy is occasional and is a creative, newsworthy or transformative use of a limited excerpt for non commercial purposes."