News: A few weeks ago, Moveon.org sued Viacom for an allegedly false misrepresentation on a DMCA sent by Viacom to YouTube to take down a parody of Stephen Colbert’s truthiness. The parody was called “falsiness.” Under the DMCA, section 512(f), a copyright holder that makes a misreprentation on a DMCA notice can be held civilly liable “for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.”
Initially, Viacom’s lawyer sent a letter to EFF denying completely that it had sent the DMCA notice. (I found the letter a little smug in calling out “Fred” and “Larry” by name, referring to Moveon.org’s lawyers, Fred von Lohmann and Lawrence Lessig, but that letter is nowhere to be seen on EFF’s site.) Now, Viacom has ‘fessed up to sending the DMCA notice and admits that it shouldn’t have because the parody is a fair use and (not copyright infringement) (See the Viacom letter).
As a part of the settlement, “Viacom has agreed to set up a website and email ‘hotline,’ promising a review of any complaint within one business day and a reinstatement if the takedown request was in error.” Viacom’s website will have language informing users of rights, as outlined in this Viacom letter. According to another letter, Viacom’s website also will state: “Regardless of the law of fair use, we have not generally challenged users of Viacom copyrighted materials where the use or copy is occasional and is a creative, newsworthy or transformative use of a limited excerpt for non commercial purposes.” (More here and on EFF’s website)
Analysis: This is a victory for fair use, and EFF (particularly, Fred von Lohmann) deserves credit for securing this settlement. I’m glad Viacom owned up to its error and even more glad that it says it will implement on fair use policy on its website.
To me, the biggest part of the settlement is Viacom’s general acceptance of users’ transformative, noncommercial uses of its copyrighted works. This is consistent with what Don Verrilli, Viacom’s lawyer in the suit at YouTube, said at the Fordham conference about “transformative uses being OK.” I’ll be saying a lot more about this kind of sentiment in an article, but suffice it for now to say that I believe this sentiment is a very important development for copyright law.