First let me say that this case is not more ridiculous then Viacom sending take down notices for content that is clearly not theirs; it is much more ironic (oh lets sue Google because their stealing our stuff and the only thing that is posted is our copyrighted work; then lets make a show that just replays You Tube content).

Second, you can’t send a take down to a TV channel.

Third, this might not be as clean cut as Legal Mike makes it seem; mainly because fair use isn’t as clean cut as he makes it seem. Fair use is defined as:

“In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”

So lets consider each factor one at a time:
1) Purpose or Character- While this is clearly commercial use, the commercial vs educational part of this consideration has been played down. So the primary thing to look at is if the use is transformative or merely derivative. Now, Legal Mike talked of how Viacom made commentary about it, but according to Folsom vs Marsh, “if [someone] thus cites the most important parts of the work, with a view, not to criticise, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy.” Since then it has further been defined as “the enquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is “transformative,” altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” This last part is the most important part. All 4 factors must be taken into account, just because the work contains commentary about the original does not mean that it will always be fair use.

2) Nature of the Copied Work- I doubt that this would have that much of an importance here.

3) Amount and Substantiality- I can’t actually watch the video because I am in a computer lab but I am guessing from the comments that Viacom used the entire video. This is a bad thing for Viacom.

4) Effect Upon Works Value- It might not seem like You Tube clips are that valuable, “the burden of proof here rests on the defendant for commercial uses, but on the copyright owner for noncommercial uses.” Therefore it is on Viacom to show that fair use applied here. Also this has been labeled as the single most important factor of the 4. Viacom could have just as easily licensed the content, meaning using it for free took away the potential licensing value.

While this case would be very much in the air and you can’t know if something is fair use until it has been judged in court, but I personally don’t think this is fair use. If this is true then Viacom’s work is derivative and as such infringing. If this case actually goes to trial (doubtfully) and they find that Viacom did infringe, it could have some pretty far reaching effects.

I would also like to point out that the person wouldn’t get any money because the only damages give for copyright infringement are actual (damages to profit and such) and statutory (damages required by law). Since the person who posted the content didn’t suffer any actual damages (except perhaps how much they could make off licensing) and the only way to get statutory damages is to have registered the work before it was infringed. If Viacom registered the work though there might be some sort of recourse.

I just puked in my mouth a little

Shows the true colors of our legal system don’t it? Those pesky jew lawyers will think of anything.

Even if a lawyer loses they still get paid. Absolute bullshit.

Viacom is such a bloated pig of a company. They have no strategy and know it. Someone should buy them up (private equity), part them out, and sell off the disparate properties to targetted media companies who can take better care of their market segments…

i always wondered what form an ouroboros would take irl. http://www.answers.com/main/ntquery?s=ouroboros&gwp=13

heart,
andy.

I wonder if Viacom’s latest action in a way “condones” what YouTube and its users are doing.

YouTube is an excellent platform for amplifying what is hot in television and music. In short, it help promote Viacom shows …. for Free!

I am not naive enough to think Google/YouTube corporation is actually altruistically, but Viacom’s actions ultimately hurt Viacom and their viewers.

That just leads to hippocracy.

From their ToU 6th guideline third paragraph.

“For clarity, you retain all of your ownership rights in your User Submissions. However, by submitting User Submissions to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the YouTube Website and YouTube’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the YouTube Website (and derivative works thereof) in any media formats and through any media channels. You also hereby waive any moral rights you may have in your User Submissions and grant each user of the YouTube Website a non-exclusive license to access your User Submissions through the Website, and to use, reproduce, distribute, display and perform such User Submissions as permitted through the functionality of the Website and under these Terms of Service. The above licenses granted by you in User Videos terminate within a commercially reasonable time after you remove or delete your User Videos from the YouTube Service. You understand and agree, however, that YouTube may retain, but not display, distribute, or perform, server copies of User Submissions that have been removed or deleted. The above licenses granted by you in User Comments are perpetual and irrevocable.”