Viacom Changes Video Takedown Policy, Prompting Lawsuit Dismissal

Claiming victory on behalf of fair use provisions of US Copyright Law, the Electronic Frontier Foundation - which had served as a mediator - announced this afternoon that documentary filmmaker Brave New Films and political activist group MoveOn.org have dismissed their lawsuit against Viacom. This after the content provider giant conceded that demands it had made for YouTube and other video sharing services to remove a promotional parody film the groups co-produced, featuring clips from "The Colbert Report" from Viacom's Comedy Central, was ill-advised and in error.

Letters from Viacom counsel in recent weeks to EFF attorney Fred von Lohmann, posted on EFF's Web site, reveal amendments to Viacom's stated policy for notifying YouTube and others of allegedly infringing video. "Viacom recognizes that the 'fair use' doctrine may permit some use of limited amounts of copyrighted material for specific purposes such as criticism, commentary, teaching or parody."

Parody may possibly have described what Brave New Films had in mind, in the creation of a Web site called "Stop the Falsiness." There, users are asked to sign an online petition to voice their discontent with the words and wisdom, if you will, of comedian Stephen Colbert - credited with coining the term "truthiness" as a standard to which politicians and people in general should aspire. The petition request is accompanied by a video that includes multiple brief excerpts from Colbert's show, including his allegation that a melting glacier poses no threat to people, except to innocent little babies who may be placed in a glacier's wake...and who may wait there for a century or so.

The video mostly features original commentary from others, including comedian and Minnesota senatorial candidate Al Franken, Sen. Russ Feingold (D - WI), and apparently one of Colbert's own staffers, whose face is only partly masked with a black rectangle.

Though Viacom had originally denied responsibility for issuing a takedown notice, it later admitted its staffers had contacted video services using their standard channels, issuing a request with which YouTube and others apparently complied, at least for a time. Now, it appears Viacom is striking a more conciliatory tone, telling von Lohmann a few weeks ago, "We appreciate your help in making sure our 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."

Later, Viacom attorney Mark Morril notified the EFF that the company would add this language to its online fair use notice: "Regardless of the law of fair use, we have 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."

That prompted this response from von Lohmann, in a written statement from the EFF this afternoon: "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.

By choosing to respect newsworthy and transformative uses of their materials -- and establishing a simple process that lets improperly targeted users get their material back up quickly -- Viacom has taken important steps toward meeting that responsibility. We hope other media companies will follow Viacom's lead."

The right of individuals to produce parodies of others' work is explicitly protected by US fair use law. The EFF aided in Brave New Films' defense by saying the Falsiness Web site qualified as a parody. The fact that the suit was dismissed will mean the court may not have the opportunity to actually decide whether the EFF's contention was factual.

Under the law, for a work to qualify as a parody, it must bear enough resemblance to the subject matter as to reasonably depict what's being parodied, but not so much resemblance that it infringes upon the original work's copyright. The dividing line between the two has been left for judges to decide on a case-by-case basis.

The precedent-setting case in US law that established the need for a "per-parody" assessment is a 1953 case involving comedian Jack Benny. Back in 1945, Benny's comedy team produced a skit for his radio show based around the movie Gaslight, which starred Ingrid Bergman and Charles Boyer. That spoof was produced with permission from the original movie's rights holder, Loew's Incorporated.

In 1953, Benny's team produced essentially the same spoof for television, with Barbara Stanwick and Jack Benny reprising the movie's roles, but without extending that permission - and this time Loew's sued. Loew's contention - which Judge James Carter famously upheld - was that the Benny TV parody "Autolight" failed to qualify as a parody...because it wasn't funny.

Had the "Falsiness" case gone to trial, Viacom might have had the opportunity to make the same claim. On the other hand, Viacom might also have had an alternative argument: "Falsiness" is not actually a direct parody - there is no "Truthiness" Web site that includes an online petition (although an independent group has launched a wiki parody of Wikipedia based on Colbert's truthiness ethic). Instead, the Web site may qualify as satire instead of parody, and US law does not explicitly protect satire.

In its defense, Brave New Films might have had to argue that since its work was set in the existing parody realm of Stephen Colbert's show, it in effect continued the parody Colbert started, and in so doing was a parody in its own right. As such, it could have argued "Falsiness" was protected under US copyright law.

If Viacom the opportunity to have made an anti-parody argument, it could have stirred up a hornet's nest among others who have claimed Viacom's takedown orders for their videos are unfair. Filmmakers would have had to prove their works were not only parody but funny as well under the law. This assumes that Brave New Films had not pointed out that at least one Colbert staffer actually appeared in the film, thus participating in its production.

As it stands, the EFF managed to successfully avert a future funny firestorm.