Thank
you for your prompt response to my counternotification yesterday. I can only
imagine the volume of email to which you must respond.
With
all due respect to YouTube (and I greatly respect and enjoy the products of
both YouTube and Viacom/Comedy Central), however, I do not think you are
correctly following the procedure laid out in the Digital Millennium Copyright
Act (DMCA). The whole point of the DMCA was to allow ME to take on the risk of
getting sued and, if Viacom/Comedy Central decides on closer examination that I
do not deserve to be sued, you can put my videos back up with no risk of
liability to YouTube and no need for an "army of lawyers and untold sums
of money in litigation fees."
It's
all described in the federal statute to which YOUTUBE referred in its notice to
ME, 17 USC 512. According to 17 USC 512(g)(2), when YouTube receives my
counternotice, YouTube then gives a copy of my counternotification to
the person at Viacom/Comedy Central who complained "and informs that person that it will replace the
removed material or cease disabling access to it in 10 business days."
Next,
my wife and I wait to see if a huge multinational corporation wants to sue me.
If
not, again according to 17 USC 512(g)(2), YouTube
then
"replaces the removed material and ceases disabling
access to it not less than 10, nor more than 14, business days following
receipt of the counter notice, unless its designated agent first receives notice
from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court
order to restrain the subscriber from engaging in infringing activity relating
to the material on the service provider’s system or network."
You
can read 17 USC 512(g)(2) at:
If Viacom/Comedy Central declines to sue me in the next two weeks,
under the law, shouldn't YouTube replace the removed material?
Finally,
your suggestion that I reach an agreement with Viacom/Comedy Central allowing
use of their material, again with all due respect, misses a big purpose of
fair use. A big purpose of fair use is to allow critics/analysts like
me to use material they are criticizing/analyzing WITHOUT the permission of their subjects.
I want to emphasize again that this entire email is written "with all
due respect," though, because I really enjoy YouTube and I'm not at
all looking for a confrontation with YouTube or, even, Viacom/Comedy
Central.
Allen
Asch AKA "LiberalViewer"
In
a message dated 11/3/2006 3:30:21 PM Pacific Standard Time, copyright@youtube.com
writes:
Dear
Allen
Thank you for sharing your concerns with us. We're sure you can
appreciate that YouTube is in no position to analyze and then negotiate
and/or litigate on behalf of each of our individual users whether each
of the approximately 65,000 clips posted to our site each day
constitutes a "fair use" under copyright law. Such an undertaking
would
require an army of lawyers and untold sums of money in litigation fees.
As you may know, the fair use analysis can be a very complex one and
is often quite subjective.
However, we certainly do not prevent our users from reaching out to
copyright owners directly. We would honor any specific, enforceable and
valid agreement between a user and a content owner
with respect to
whether any particular use on our site is a fair use. Please let us
know if you reach any such agreement with Comedy Central Property with
respect to the "Did James Carville Out-Colbert Stephen Colbert?"
video
we removed from your account.
Sincerely,
YouTube, Inc.
AAsch@aol.com wrote:
> Dear YouTube:
>
> Pursuant to 17 U.S.C. Section 512, I am providing you the attached
> "Declaration" which should serve as written notice under penalty
of
> perjury that I have a good faith belief that my YouTube video described
> herein was removed or disabled as the result of a mistake or
> misidentification.
>
> I will follow up this email with a signed fax providing the same
> information.
>
> I'd also like to take this opportunity to say that I have really enjoyed
> the unique opportunity YouTube's innovative service has provided me to
> spread some messages I really consider important. I hope we can iron out
> these details so I can continue using YouTube's great service in the
> same way in the future.
>
> Sincerely,
>
> Allen Asch AKA "LiberalViewer"
>
>
> *__*
>
> *__*
>
> *__*
>
> *__*
>
> *_DECLARATION OF ALLEN ASCH _**_REGARDING YOUTUBE VIDEO TITLED:_*
>
> *_“_**_Did James Carville Out-Colbert Stephen Colbert?”_*
>
> *_ _*
>
>
>
> I, ALLEN ASCH, declare as
follows:
>
> I am the person who
created, controls, and uses the YouTube
> account under the username “LiberalViewer.”
>
> I reside at XXXXXXXXXX, Sacramento, CA 95821 and my
> home phone number is (916) XXX-XXXX.
>
> My home address is within
the jurisdiction of the United
> States District Court in the Eastern District of California, I consent
> to the jurisdiction of that court, and I will accept service of process
> from Comedy Central, Viacom, and/or their agents at my home address.
>
> On November 1, 2006,
YouTube notified me that, as a result
> of a third-party notification by Comedy Central claiming that my
> material is infringing, YouTube had disabled access to the following
> material I uploaded to YouTube:
>
> *My video titled “**Did James Carville Out-Colbert Stephen Colbert?” at
> the URL, *http://www.youtube.com/watch?v=LzCW4SYvEJk.**
>
> Although I am no expert on
intellectual property law and my
> study of the subject provided murky answers at best, I am informed and I
> believe in good faith that my video fits well within the FAIR USE
> exception to the copyrights laws for the following reasons:
>
> *1*. My video is
noncommercial and its purpose is to educate
> people on public issues and provide media analysis/criticism commentary
> that transforms the fairly used material into something substantially
> different.
>
> *2*. While Comedy Central airs primarily entertainment programming,
the
> fairly used material was chosen for its news value and studies show
> Comedy Central does have substantial news content. See, e.g., Lee
> Hurwitz, “Daily Show News Equal to Networks: IU Study Finds Coverage
> Rivals ABC, CBS, NBC,” /Indiana Daily Student/ (October 5, 2006) at
> http://www.idsnews.com/news/story.php?id=38119
>
> *3*. The fairly used material is made up of short clips (the portions of
> the fairly used material with unmuted audio are all less than 60 seconds
> in length) and each clip is taken from a different 30 minute television
> episode.
>
> *4*. My video has a small audience (the YouTube website says this
video
> got less than 10,000 views, some of which are not unique) and, as
> something of a “fan tribute,” I believe my video actually increases the
> market for Comedy Central programming, if it affects that market at all.
>
> I declare under penalty of
perjury that the foregoing is
> true and correct except for those things stated on information and
> belief, and, as to those things, I have a good faith belief they are true.
>
> Executed November 2, 2006,
at Sacramento, CA.
>
>
>
>
>
>
>
>
>
>
> ___________________________________
>
>
ALLEN ASCH (electronic signature)
>
>
YouTube username “LiberalViewer”
>
>
> ------------------------------------------------------------------------
>
> Subject:
> Video Rejected: Copyright Infringement
> From:
> DMCA Complaints <copyright_counternotice@youtube.com>
> Date:
> Wed, 1 Nov 2006 19:28:24 -0800 (PST)
> To:
> LiberalViewer <AAsch@aol.com>
>
> To:
> LiberalViewer <AAsch@aol.com>
>
>
> YouTube
>
> Dear Member:
>
> This is to notify you that we have removed or disabled access to the
> following material as a result of a third-party notification by Comedy
> Central Property claiming that this material is infringing:
>
> Did James Carville Out-Colbert Stephen Colbert?:
> http://www.youtube.com/watch?v=LzCW4SYvEJk
>
> *Please Note:* Repeat incidents of copyright infringement will result in
> the deletion of your account and all videos uploaded to that account. In
> order to avoid future strikes against your account, please delete any
> videos to which you do not own the rights, and refrain from uploading
> additional videos that infringe on the copyrights of others. For
more
> information about YouTube's copyright policy, please read the Copyright
> Tips <http://www.youtube.com/t/howto_copyright> guide.
>
> If you elect to send us a counter notice, to be effective it must be a
> written communication provided to our designated agent that includes
> substantially the following (please consult your legal counsel or see 17
> U.S.C. Section 512(g)(3) to confirm these
requirements):
>
> (A) A physical or electronic signature of the subscriber.
>
> (B) Identification of the material that has been removed or to which
> access has been disabled and the location at which the material appeared
> before it was removed or access to it was disabled.
>
> (C) A statement under penalty of perjury that the subscriber has a good
> faith belief that the material was removed or disabled as a result of
> mistake or misidentification of the material to be removed or disabled.
>
> (D) The subscriber's name, address, and telephone number, and a
> statement that the subscriber consents to the jurisdiction of Federal
> District Court for the judicial district in which the address is
> located, or if the subscriberis address is outside of the United States,
> for any judicial district in which the service provider may be found,
> and that the subscriber will accept service of process from the person
> who provided notification under subsection (c)(1)(C) or an agent of such
> person.
>
> Such written notice should be sent to our designated agent as follows:
>
> DMCA Complaints
> YouTube, Inc.
> 1000 Cherry Ave.
> Second Floor
> San Bruno, CA 94066
> Email: copyright@youtube.com
>
> Please note that under Section 512(f) of the Copyright Act, any person
> who knowingly materially misrepresents that material or activity was
> removed or disabled by mistake or misidentification may be subject to
> liability.
>
> Sincerely,
> YouTube, Inc.
>
> Copyright © 2006 YouTube, Inc.