Keywords: YouTube, Fair Use, Viacom, Copyright Infringement

My last post was a PSA for popular culture, but here’s one for the blogging community, specifically those who liberally use film clips, (presumably) under the protection of the Fair Use laws. I’ve recently had copyright infringement issues with YouTube, duking it out mostly with their form e-mails, and as of now, I’m in a good place. 1  Therefore, I’d like to share my story so it might help others. (I benefited from the smart info circulated by Kevin Lee, Matt Zoller Seitz, and others, so let’s keep this Good Karma Train going!)

Two months ago, I was doing my blogging thing, writing posts on WordPress and embedding my video clips via YouTube, like so many others do. In early June, I received notice that one of my clips (from this post about Henry Fonda) pissed off Paramount’s digital troll and therefore that clip was disabled.

I immediately filed a countersuit—which is a simple process via YouTube–claiming Fair Use, which put the ball in Paramount’s court. I knew as long as a human saw my clip and it’s corresponding post, I’d be in the clear. Here’s how Paramount handles such things: you file the countersuit; they review the clip and drop the situation, which can take 10 to 14 business days; YouTube re-enables your clip. This process takes up to 3 weeks and for that entire time, your clip is in limbo.

Please ignore YouTube blog post from April, 2010! It claims, “Once you’ve filed your dispute, your video immediately goes back up on YouTube” (working under the assumption that you’re innocent until proven guilty and you’re out on bail, pending trial). This is not true and this misinformation instills false hope. Your clip will stay disabled until Paramount lets the matter drop.

While the Fonda clip was down, I was now on Paramount’s Shit List, which meant their troll found my two Godfather 2 clips. With three strikes against me, YouTube terminated my account. With over two thirds of my posts driven by video clips, my whole blog was dead in the water while I waited for someone at Paramount to watch my clips and cry no harm, no foul.

Meanwhile, two significant things happened by late June.

First, I found a satisfactory alternative to YouTube (satisfactory for me, mind you). I considered DailyMotion, Vimeo, Revver, and a few others. All had major caveats, but mostly I realized that it would be a temporary solution at best: I’d be kicked off any of the other video clip sites just like I had been at YouTube. So, I shelled out the money for WordPress’s videoplayer VideoPress ($60/year for the player plus 3 additional gigs of server space). True, I’m losing random YouTube traffic, but I also have the ability to disable the embedding function (meaning no one can put my clips into their blogs), which, as you’ll read, could be my ace-in-the-hole.

The other noteworthy event was the decision in Google/YouTube’s favor in their lawsuit with Viacom. The bottom line as it applies here is that YouTube is not responsible for reviewing content on their site for copyright infringment; it’s the responsibility of the victim of the infringement. In other words, if Viacom wants their clips off of YouTube, it’s their job to police the site.

Six days later, with my YouTube account still disabled (my Paramount Fair Use countersuits were still pending), I got an e-mail from a Viacom lawyer saying I should give them a call to discuss. (Did you know that Viacom owns Paramount? I forgot that!) Let’s review the timeline again:

-BEFORE 6/23: Form e-mails from YouTube on behalf of Paramount saying copyright infringement, disabled clip, blah, blah, blah.

-AFTER 6/23: Direct contact from a human at Viacom. (Man, that must have been some court decision.)

I call the lawyer Viacom. Here’s the gist: Nice guy, sounded about 10 years younger than me. He never said “Viacom will take you to court,” but he did say YouTube 4 times in 30 seconds, which gave me a clear picture of the point of the phone call. Since I knew my clips were already back up on WordPress (thanks to VideoPress), I asked, “What if my commentary were hand-in-hand with the clips, on the same site. Would my Fair Use defense be any easier?”

“Yes,” he said carefully. “It’s mostly a problem if it’s on YouTube.”

This exchange was the most promising piece of info I’ve heard yet. Couple it with WordPress’s ability to disable embedding of a clip elsewhere, and the fact that I think Viacom’s hands will be full simply policing YouTube, DailyMotion, etc—and therefore, not policing Blogger, WordPress, etc—then a blogger like me stands a chance. 2

True, I’m paying to keep my clips online, and I’m losing ancillary YouTube traffic. On the flip side, there is no advertising on my clips, my workflow is the same, and I have a better understanding of our rights as bloggers. Couple that with this recent decision, and things are looking pretty good.

So, if you and your blog are getting hassled by the Man and you’ve found this post via a Google search, take heart. One, you’re not alone and, two, you have options. And please post a comment with a link; I’d love to check out your blog!


BACK TO POST 1 Jesus, I hope I didn’t just jinx myself.

BACK TO POST 2 Uh-oh. Double jinx!

1 Comment

Filed under Blogs

One response to “Keywords: YouTube, Fair Use, Viacom, Copyright Infringement

  1. Jansen

    Very cool you actually got a human on the phone. Interesting about your alternate site research. So often whoever gets there first online (youtube, google)becomes the monolithic standard. nice work. so glad there will still be pictures in your storybook.

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