Legal Issues

by Mike Masnick

Filed Under:
copyright, dmca, takedown

msnbc, nom, youtube

Activist Group Uses DMCA To Take Down Video Exposing Its Fake Concerned Citizens

from the dmca-abuse? dept

We've definitely seen cases where activist groups, upset with what people were saying about them, used the DMCA abusively to remove content that they had no real say over. However, this latest story is a bit strange. Before we get to it, though, I'm going to ask, politely, that the comments stick to the copyright issues at hand, rather than the political issues... Apparently, a group called The National Organization for Marriage (NOM) put together a video of "ordinary people" worrying about the impact of gay marriage being allowed. It turns out that everyone in the video is an actor, and the fact that they're "fake" received plenty of attention earlier this week, including being shown on the Rachel Maddow show on MSNBC, which included clips of the audition tapes of the actors. The clip of the MSNBC segment was then put on YouTube. And here's where the copyright questions come in... the video was of the MSNBC segment, but NOM put in a DMCA takedown request, which YouTube obeyed.

That raises all sorts of questions... MSNBC reporting on the videos is almost certainly fair use of NOM's videos. But, it was someone else who uploaded the MSNBC clip to YouTube. MSNBC is still running the clip on its own site -- but, if anyone had any sort of DMCA claim on the video, one would think it would be MSNBC... not NOM. So, then, is NOM abusing the DMCA takedown process, in demanding an entire video (most of which is not its content) be taken down? Seems like you (or, say, the EFF) could make a pretty strong case for that...

Reader Comments (rss)

(Flattened / Threaded)

  1. identicon
    Anonymous Poster, Apr 14th, 2009 @ 4:43pm

    Yeah, NOM's pretty much screwed. This is a blatant abuse of the DMCA. Their bullshit politics is just the icing on the idiocy cake.

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Poster, Apr 14th, 2009 @ 4:44pm


    Also, who the hell can take a group with the acronym "NOM" seriously? I mean, come on, tell me you don't think of LOLcats when you see that acronym.


    reply to this | link to this | view in thread ]

  3. identicon
    Jesse, Apr 14th, 2009 @ 4:50pm

    Has anyone heard their new 2M4M acronym? (They mean "2 million for marriage," but everyone else sees craigslist speak for "2 men looking 4 another man") Brilliant! I'm convinced that some internet savvy dude has snuck in behind the scenes just to mock them!

    reply to this | link to this | view in thread ]

  4. identicon
    Matt T., Apr 14th, 2009 @ 4:51pm

    Re: Re:

    Weird; I always thought "omnomnom" was the sound that that guy in Team Fortress 2 makes when he's eating the sandwich.

    reply to this | link to this | view in thread ]

  5. identicon
    some old guy, Apr 14th, 2009 @ 4:53pm


    I respectfully NOM NOM NOM at your request.

    (thats lolcat speak for 'ok, I wont discuss the political message')

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, Apr 14th, 2009 @ 5:17pm

    Re: Re: Re:

    Om Nom Nom was started (or rather made popular) by Cookie Monster it has since become a cultural think or anyone digging into food that is used by people who grew up watching that era of Sesame Street.

    reply to this | link to this | view in thread ]

  7. identicon
    Ed, Apr 14th, 2009 @ 5:47pm

    Maddow had a field day

    Last night Rachel had a field day with this, showing the takedown on her show, showing the footage again, and reminding viewers that they could still see the clips on the page for her show. She seemed positively tickled by the whole thing - she thought it was hysterical.

    reply to this | link to this | view in thread ]

  8. identicon
    ehrichweiss, Apr 14th, 2009 @ 6:01pm


    As soon as I saw the 2M4M in your post, the "craigslist version" is what I imagined it probably meant. Too funny.

    reply to this | link to this | view in thread ]

  9. identicon
    Sarah Black, Apr 14th, 2009 @ 6:19pm

    Re: Maddow had a field day

    Before today's techdirt post (and NOM), I had never heard of "The Rachel Maddow Show". It seems like something i may be interested in creating a season pass on my TiVo for. Thanks Ed & TechDirt... oh, and that group with the funny "eating salad" name.

    reply to this | link to this | view in thread ]

  10. icon
    ChurchHatesTucker (profile), Apr 14th, 2009 @ 6:32pm

    Et tu, youtube?

    I *sort of* get why youtube takes things down on these ridiculous requests (much in the same way that I get why abused spouses don't press charges.)

    Here's what I don't get. Why doesn't google press charges against these, essentially perjured, take downs? How the hell hard is it to understand that advocating for your users (at least when they're clearly in the right) is job number frakin' one?

    reply to this | link to this | view in thread ]

  11. identicon
    Anonymous Coward, Apr 14th, 2009 @ 6:48pm

    Re: Et tu, youtube?

    But YouTube is not the wronged party here. Whoever uploaded it is (or, alternately, MSNBC is, but they seem to not be complaining about it having been put on YouTube). It's that person's (or MSNBC's) option of accusing NOM of perjury, not YouTube's.

    I'm not a lawyer, but it also seems possible to me that such actions could pose a risk to YouTube's safe harbor status. With ongoing lawsuits against them, they don't want to risk losing that.

    reply to this | link to this | view in thread ]

  12. identicon
    Anonymous Coward, Apr 14th, 2009 @ 6:49pm

    Some may have missed the overlay about 20 sec. into the commercial:

    "The stories these actors are telling..."

    The commercial and some thoughts pertaining to copyright can be found at:

    As for who owns what regarding the commercial and the auditions, the best I can do is note that NOM, its ad agency and the actors (in the commercial and in the auditions) may each hold some piece of the copyright "action". Of course, this depends upon the contracts between the actors/auditioners and the ad agency, and the contract between the ad agency and NOM.

    BTW, it is quite commonplace for ad agencies to retain casting companies to conduct auditions from which the eventual participants in a commercial are selected. In this case you can add the casting company to the above mix.

    reply to this | link to this | view in thread ]

  13. icon
    Ferin (profile), Apr 14th, 2009 @ 8:28pm

    Why NOM filed

    Saw on another site that the Youtuber who uploaded it received info from NOM in the take down request. Apparently they say some of the audition tapes that were shown in the MSNBC segment were of actors that were not used, and thus NOM did not have them sign all the proper releases.

    Not sure what to make of it, myself.

    reply to this | link to this | view in thread ]

  14. icon
    ECA (profile), Apr 14th, 2009 @ 10:05pm

    i find it entertaining..

    I find it funny, that others worry about..
    Gay marriage??
    They are jealous that the GUYS look better then their Husband??
    1 less Guy/gal to hit/screw/marry on??
    OTHERS souls??
    If they THINK the other person is going to HELL?? is it of YOUR OWN concern?? dO YOU think THAT THEIR incongruity IS GOING TO INVOLVE you AND FORCE YOU into hell??

    reply to this | link to this | view in thread ]

  15. identicon
    Anonymous Coward, Apr 14th, 2009 @ 10:29pm


    And yet, they have no rights to the item they sent notice on. That was MSNBC's piece. The content that was used was for commentary purposes, thus falls under fair use. NOM violated DMCA by sending notice on materiel they did not hold the copyright on.

    reply to this | link to this | view in thread ]

  16. identicon
    BlueBombardier, Apr 15th, 2009 @ 8:49am

    NOM also removing mashups from users

    They have also removed video mashups of their ad created by users to satirize and parody their agenda. These videos are covered under the first amendment, and are therefore covered under fair use.

    The "It's Raining Men" mashup has been removed, much to my disappointment.

    reply to this | link to this | view in thread ]

  17. identicon
    spaceman spiff, Apr 15th, 2009 @ 11:20am

    YouTube needs to change policy

    YouTube needs to change its policy regarding DMCA takedown notices. It full well knows that in many instances these are bogus. It should require proof of violation by the instigator of the action that the video in question is infringing material. By placing the burden of proof on the instigator (AFAIK, this is appropriate under DMCA rules), it would do a lot to discourage this sort of egregious activity and protect free speech and fair use of these materials.

    reply to this | link to this | view in thread ]

  18. identicon
    another mike, Apr 15th, 2009 @ 12:32pm

    toast. omnomnom

    So, leaving aside the fact that they are just a noisy minority advocating a discriminatory fringe viewpoint, they've decided to take on both Microsoft and Google using Microsoft's own dirty tricks. They are so toast.

    reply to this | link to this | view in thread ]

  19. identicon
    Matt Bennett, Apr 15th, 2009 @ 2:45pm

    Not a copyright issue, but aren't a lot of these sorts of videos done by paid actors? Kinda like the "customers" on an informercial who aren't really customers, either? Is this news?

    reply to this | link to this | view in thread ]

  20. identicon
    Anonymous coward, Apr 16th, 2009 @ 10:22am

    The copyright question, already

    I love that it took all the way to comment #12 to get to the copyright question.

    All politics and the fact that the takedown process is faulty aside, what's controversial with the copyright question here? Someone requested a takedown of a video they held a copyright interest in.

    NOW has a video they likely hold copyright to. MSNBC copys, transmits and distributes (parts) of it in its own video. Someone else copys and distributes the MSNBC copy (which contains the NOW video.) Now says 'hey that video contains (parts) of my copyrighted video, take it down.'

    Unless the youTuber claims fair use, (or maybe possibly some marginal "too short to constitute an infringement" claim) it seems like a pretty clear infringement.

    You're not suggesting that the fact that MSNBC's use was excused has any bearing on the YouTuber's use, are you?

    reply to this | link to this | view in thread ]

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