Earlier this month, some of the most creative and entertaining parody videos on the Web were pulled from YouTube over dubious copyright claims. The disputed works, known as the “shred” videos, are a series of parodies in which Finnish media artist Santeri Ojala overdubs performances of legendary guitarists such as Steve Vai, Carlos Santana, and Eric Clapton. Ojala replaces the audio tracks of the guitarists' performances with his own (intentionally) bad guitar playing.
Because Ojala is a skilled guitar player himself, the horrific sounds match closely with the guitar hero's hand and finger movements, which makes the videos that much more surreal. Other rock stars unwary enough to enter the screen during the guitarists' performances get similar treatment – in one notable clip, Ozzy Osbourne's clapping to the beat is reduced to a rhythmless patter that wouldn't have cut it in a backyard birthday celebration, much less a rock show.The juxtaposition of the guitarists' rock-star stage antics and “rockin” facial expressions with Ojala's amateurish noodling was humorous and well-executed enough to warrant attention from WIRED, Guitar Player magazine, and the Jimmy Kimmel Live! television show, among others. Guns N' Roses guitarist Slash, who was a guest on the same episode of Jimmy Kimmel's show, jammed with Ojala after Ojala performed a live parody of a Slash concert video on the show.
In January or February, YouTube recieved three complaints regarding the videos, which appear to have come from artists that Ojala had parodied. In response, YouTube took down the videos and disabled Ojala's account. According to Listening Post, a WIRED.com blog, YouTube's parent company Google has a policy of disabling accounts that have "multiple copyright infringement claims filed against them." At this point Ojala has not taken action to reinstate his account; Listening Post quotes Google as saying that this would require that Ojala "hire a lawyer and appeal the artists' infringement claims."
This situation highlights one of the problems with the DMCA takedown notice framework, especially as it pertains to foreign content creators such as Ojala. These videos are clear examples of parody, which means that Ojala would have a strong fair use defense to the guitarists' copyright claims. If Ojala had sent a counter-notice asking that the videos be put back up pursuant to 17 U.S.C. § 512(g), YouTube would have been legally required to do so – at least in order to stay in the safe harbor against wrongful takedown liability – and it is unlikely that the guitarists would have prevailed if they would have pursued a claim in federal court. It's even likely that the guitarists wouldn't have pursued a claim at all. In order to send a counter-notice, however, Ojala would have had to agree to the jurisdiction of the federal district court in the district where YouTube is located. Ojala also would have had to agree to accept service of process from the person who sent the original copyright complaint (see 17 U.S.C. § 512(g)(3)(D). Without a voluntarily agreement, such as automatic consent under the DMCA, there would probably be no way to sue Ojala in the U.S. for copyright infringement.
This puts Ojala in a dilemma. He cannot get his content put back up without sending a counter-notice, and he can't send a counter-notice without placing himself at the mercy of the U.S. court system. For Ojala, a native of Finland, you can be sure this is not an attractive prospect. While the DMCA theoretically allows us to take a stand for free speech, it is unrealistic to expect this to offer much solace to U.S.-based content creators who can't afford to defend a case in federal court and foreign content creators like Ojala who don't want to submit to the jurisdiction of a U.S. court, which necessarily involves significant if not crippling costs and inconvenience.
Thankfully, there are others who are willing to take a stand for Ojala's speech rights. WIRED blog Underwire – which along with Listening Post has covered the situation in a number of posts – has put up copies of several of the shred videos. The videos are hosted at WIRED.com, rather than YouTube, and thus are safe from removal so long as WIRED is willing to stand behind Ojala.
It remains to be seen whether YouTube ever will reactivate Ojala's account or whether the shred videos will result in liability for Ojala. For now, Ojala still is making new and increasingly complex shred videos, as can be seen on his website.
(Matt C. Sanchez is a second-year law student at Harvard Law School and the CMLP's Legal Threats Editor.)