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 ViaCom's Dragnet Catches a Few "Dolphins"Elvin Lee, Samuelson Law, Technology, and Public Policy Clinic - Boalt Hall, February 14, 2007
Abstract: ViaCom recently revealed that it had sent 100,000 DMCA takedown notices to YouTube, alleging widespread copyright infringement. Soon after, it became apparent that not all of the copyrights were properly asserted, and ViaCom did not have claims to all content taken down.
For more than four years, the Irrlicht project has been an open-source 3d engine. Irrlicht users employ the engine to develop their own 3d applications, such as games, simulators, and graphic editors. As part of their effort to make the open-source engine more accessible and easy to use, the development team created videos demonstrating Irrlicht and its user interface on YouTube, a popular video sharing website (recently acquired by search giant Google). Imagine the lead developer's surprise when he opened his inbox to find an e-mail from YouTube informing him that ViaCom had requested the video be taken down, pursuant to the DMCA, claiming that it held one of Irrlicht's demonstration videos infringed on ViaCom's copyright. Irrlicht, which takes its name from the German equivalent of "Will o' the Wisp", apparently shares the moniker with another: a 1972 album by Klaus Schulze. Some have speculated that perhaps ViaCom somehow owns the copyright to this album, and that was the source of the takedown notice. While the video has since been restored, the incident highlights a far more important issue surrounding the DMCA takedown notice. Clearly no one at ViaCom (and perhaps YouTube) bothered to verify the contents of the video, and the validity of the copyright claim in question. More likely, ViaCom's DMCA complaint was automatically generated after finding the video while searching for particular keywords. This leaves open the question of whether or not ViaCom's takedown notice are even lawful under the DMCA. Such automation arguably does not create "good faith belief" and ViaCom cannot attest to its accuracy under penalty of perjury without having actually examined the videos. This is especially problematic given the recent news that ViaCom has submitted more than 100,000 takedown requests to YouTube for infringing content. Irrlicht was not the only party to be wrongfully accused of violating copyright law under this dragnet. Dr. James F. Moore, a Senior Fellow at Harvard Law School's Berkman Center for Internet and Society, reported on his blog that he, too, had received a takedown notice from ViaCom via YouTube. The allegedly infringing content? A video of him and several friends having ribs for dinner at a local restaurant. ViaCom has since retracted its claim of copyright over the video, which has been restored on YouTube. However, Dr. Moore and Irrlicht are possibly two of many whose content was improperly taken down at the request of ViaCom. On February 8th, the Electronic Frontier Foundation raised the issue on its website, quoting ViaCom as having admitted to "no more than" 60 mistakes so far. They have made a video criticizing ViaCom's actions, which they have posted (ironically) on YouTube. EFF is also asking for people who were victims of ViaCom's recent takedown flurry to contact them. |
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