YOUTUBE/VIACOM AFTERMATH - Part 2: The DMCA Counter-Notification Claim

Because a lot of people have expressed interest in this, and because I haven't been able to see any reason to withhold this info at this point, here is the Digital Millennium Copyright Act counter-notification claim that I submitted to YouTube.

(And in case you don't know what this is about, here's the original post about my situation with Viacom over a YouTube clip that I had uploaded and here's the post about its resolution.)

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It all started with the following e-mail that I received from YouTube on the morning of August 29th, 2007:

Dear Member:

This is to notify you that we have removed or disabled access to the following material as a result of a third-party notification by Viacom International Inc. claiming that this material is infringing:

Web Junk 2.0 on VH1 features my school board commercial!:
http://www.youtube.com/watch?v=ddyVQwpByug

Please Note: Repeat incidents of copyright infringement will result in the deletion of your account and all videos uploaded to that account. In order to avoid future strikes against your account, please delete any videos to which you do not own the rights, and refrain from uploading additional videos that infringe on the copyrights of others. For more information about YouTube's copyright policy, please read the Copyright Tips guide.

If you elect to send us a counter notice, please go to our Help Center to access the instructions.

Please note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.

Sincerely,
YouTube, Inc.

I read this and a short while later fired off a reply to YouTube's copyright address (copyright@youtube.com):

This is in regards to the video "Web Junk 2.0 on VH1 features my school board commercial!" that has been hosted on YouTube at http://www.youtube.com/watch?v=ddyVQwpByug

This morning I received the following notice:

"This is to notify you that we have removed or disabled access to the following material as a result of a third-party notification by Viacom International Inc. claiming that this material is infringing..."

The clip in question that I had posted was from a recent episode of VH1's "Web Junk 2.0" which spotlighted a video that I produced and have full rights to. It can be found on YouTube at http://www.youtube.com/watch?v=nLi5B0Iefsk

My clip was used by Viacom for commercial television purposes without attempting to contact me for permission. I did not mind this. I was in fact honored that they thought it worthy of featuring on their show. If anything *they* are violating *my* copyright because they used it in this way without seeking permission. And now they have caused it to be pulled... when in fact it's my own copyrighted material.

I sincerely request that you look into this matter further and you will find that I do have a most valid claim in this matter. Upon which, I would like to request that you restore the clip as soon as possible.

Sincerely,
Chris Knight

A minute later, I recieved the following automatic response from YouTube:

Thanks for contacting YouTube! You've reached the copyright and DMCA compliance team. Your message has been received and is now queued for review. Please note that general help inquiries won't be answered here. For help with other site-related issues, please visit our Help Center at http://www.google.com/support/youtube/.

If you're requesting removal of a video that is allegedly infringing your copyright, please make sure that you have provided us with all of the required information in order to process your complaint. Providing incomplete information may delay the processing of your claim. For the requirements of DMCA notification, or if you have questions about our DMCA policy, please see: http://www.youtube.com/t/dmca_policy

Did you know that YouTube offers copyright owners a tool for submitting notifications more easily? If there are many videos to be removed, or you expect to have an ongoing need to remove potentially infringing content from YouTube, we suggest that you sign up for our Content Verification Program, which electronically notifies us, removing any room for error, and significantly increases the speed at which we are able to remove any infringing content. To sign up for this tool please visit: http://www.youtube.com/t/copyright_program

Regards,
The YouTube Team

That e-mail correspondence all took place shortly after 11 a.m. EST. Five and a half hours later, at 5:47 p.m., another e-mail from YouTube arrived:

Dear Chris,

We received notification from Viacom International Inc. When we're notified that a particular video uploaded to our site infringes another's copyright, we remove the material as the law requires. If you feel a content owner has misidentified your content as infringing, you may file a DMCA counter-notification.

For more information, visit our Copyright Tips page,
http://youtube.com/t/dmca_policy.

Sincerely,

Harry
The YouTube Team

I went to the link that Harry at YouTube sent me. I'd already visited it earlier in the day when I was looking at my options, writing up the report for the blog on what had happened, etc. After this new mail from YouTube I looked over it once again, and immediately began writing my DMCA counterclaim.

I followed YouTube's directions precisely. It didn't take long at all to compose and submit it. I sent it to YouTube at 6:34 p.m., less than an hour after the last YouTube e-mail.

Here it is:

From: kwerkyproductions@gmail.com
to: copyright@youtube.com
Subject: DMCA counter-notification regarding ddyVQwpByug

Dear YouTube,
I wish to file a DMCA counter-notification in regards to the following video clip that was previously hosted on YouTube:

Web Junk 2.0 on VH1 features my school board commercial!
http://www.youtube.com/watch?v=ddyVQwpByug

I do hereby state under penalty of perjury that it is my good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.

The video clip in question is a segment of the "Animals & Other Crap" edition of the television series Web Junk 2.0 on the cable network VH1, which is owned by Viacom. I used the segment per Fair Use because it is a derivative work from original material of which I am the creator and the copyright owner. The original video can be found at http://youtube.com/watch?v=nLi5B0Iefsk

Viacom did not seek my permission to use this not-for-profit material of my own creation for purposes of commercial television. As such, Viacom infringed on my own copyright. I knew this but did not seek to pursue any legal measure against them. Under the law, I still maintain copyright over even such derivative work.

In pressing YouTube to remove this video clip, Viacom is legally declaring that I am practicing copyright infringement against my own copyrighted material: in effect Viacom is assuming that it owns full copyright of the material.

I am sure that YouTube will appreciate the peculiarity of the matter, and will understand that as the original creator of the material and being one who is not seeking monetary compensation for Viacom's use of it, that I merely wish to continue using the clip under Fair Use. And as such, that you will restore the clip to its original address as soon as possible.

Sincerely,
Christopher Knight

(STREET ADDRESS)
(CITY, STATE, ZIP)
(PHONE NUMBER)
kwerkyproductions@gmail.com

I hereby consent to the jurisdiction of Federal District Court for the judicial district in which this address is located, and that I will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

Once again, this was met with an automatic reply from YouTube:

Thanks for contacting YouTube! You've reached the copyright and DMCA compliance team. Your message has been received and is now queued for review. Please note that general help inquiries won't be answered here. For help with other site-related issues, please visit our Help Center at http://www.google.com/support/youtube/.

If you're requesting removal of a video that is allegedly infringing your copyright, please make sure that you have provided us with all of the required information in order to process your complaint. Providing incomplete information may delay the processing of your claim. For the requirements of DMCA notification, or if you have questions about our DMCA policy, please see: http://www.youtube.com/t/dmca_policy

Did you know that YouTube offers copyright owners a tool for submitting notifications more easily? If there are many videos to be removed, or you expect to have an ongoing need to remove potentially infringing content from YouTube, we suggest that you sign up for our Content Verification Program, which electronically notifies us, removing any room for error, and significantly increases the speed at which we are able to remove any infringing content. To sign up for this tool please visit: http://www.youtube.com/t/copyright_program

Regards,
The YouTube Team

And this was all that I heard from YouTube for more than 48 hours. On August 31st at 8:45 p.m., the following e-mail arrived:

Dear Kwerky,

Thank you for your counter-notification. It has been forwarded to the
party that sent the takedown notification.

Sincerely,

Harry
The YouTube Team

There was no further correspondence from YouTube, until this e-mail arrived on September 11th at 8:57 p.m. (and I first read it about 20 minutes after it was sent):

Dear Kwerky,

In accordance with the Digital Millennium Copyright Act, we've completed processing your counter-notification dated x/xx/xx regarding your video

http://www.youtube.com/watch?v=ddyVQwpByug

This content has been restored and your account will not be penalized.

Sincerely,

Harry
The YouTube Team

Well, I checked to make sure the clip was really back and it was. So after waking up my wife to tell her that this was, apparently, finally over with and that the clip was restored, and then making some phone calls, about an hour after reading that e-mail I sent the following back to YouTube:

Dear YouTube,
Thank you for restoring this clip, and I greatly appreciate your assistance in resolving this matter.

sincerely,
Chris Knight

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And that was basically it so far as official action from this end went. It almost seems to have been too easy, but in all honesty I have to once again thank Fred von Lohmann and the staff at the Electronic Frontier Foundation for helping me out with this. Von Lohmann also suggests referencing the Fair Use Network's site explaining how to respond to DMCA takedown notices.

But if you ever wind up in a similar situation with YouTube or a similar service, and if you believe you do have strong grounds to contest a removal of material that you've posted, you can fight it and the first step is to file that DMCA counter-notification. Indeed, if you don't do this, there is really not much that anyone could do on your behalf. You've got to agree to some pretty serious conditions in filing the claim, such as potentially being brought to court and that you file understanding that you could be held liable for perjury. But if you sincerely believe that you are in the right and if you are willing to fight for your material, then the conditions really aren't terribly unreasonable. I can see that those things are there mostly to dissuade those who might file frivolous counterclaims.

So if this ever happens to you, now you know what I went through in getting my own clip restored on YouTube and hopefully it will help you out, too :-)