Viacom just can't seem to get a handle on this pesky thing called copyright. Earlier this year, it sent a tidal wave of takedown notices to YouTube, catching more than a few non-infringing works in the splash zone. Now it's embroiled in a billion-dollar lawsuit against YouTube's owner Google. Its latest move: copy YouTube videos itself, then send DMCA takedown notices when the copyright owner of the copied material reposts it!
Christopher Knight, in his campaign to become a member of his local Board of Education, created a commercial and uploaded it to YouTube. In the Star Wars-themed ad, Knight wields a light sabre and vows to fight against “the tightening grip of unfunded mandates.” A VH1 show called Web Junk 2.0, in which talking heads crack jokes over funny internet memes, broadcast the video without asking Knight's permission. Unphased by the permission-less copying, Knight then uploaded the Web Junk 2.0 segment to YouTube so that he could play the video on his blog. Viacom, the owner of VH1, then sent a DMCA takedown notice and got the video pulled from YouTube. In effect, Viacom accused the copyright owner of infringing his own copyright by copying what they had already copied. Huh?
Making a copy of a copyrighted work does not give you a new copyright in the new work – the original owner retains the right to control the dissemination of the original, which includes the copy you made. However, fair use allows you to make copies of protected works in some circumstances, such as for commentary or criticism. If Viacom's use was fair, then it does have copyright to the Web Junk 2.0 segment, and Knight's YouTubing of it was an infringement. If not, Viacom's program is the infringement, and Viacom has no power to control Knight's use. Who's right here? Without seeing the video, it's hard to say. Viacom's commercial republication of the entirety of Knight's work weighs against fair use, but it was providing commentary and criticism, transforming the work. Either way the law lands on this one, one thing is clear: it's yet another PR misstep from a company who can't seem to put a foot right lately.