Video

Bauer v. Wikimedia

Date: 

01/31/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Wikimedia Foundation; Jenna Glatzer; MacAllister Stone; James D. MacDonald; Kent Brewster; Ann C. Crispin; Patrick Nielsen-Hayden; Teresa Nielsen-Hayden; Brian Hill; Dee Power aka Harrilane D. Power aka D. Carr Harrilane; David L. Kuzminski; Thomas S

Type of Party: 

Individual
Organization

Type of Party: 

Individual
Organization

Court Type: 

State

Court Name: 

Superior Court of New Jersey, Monmouth County

Case Number: 

No. L-1169-07

Legal Counsel: 

Charles LeGrand, Kevin Goering, James M. Chadwick - Shepphard, Mullin, Richter & Hampton LLP; Matt Zimmerman - EFF

Publication Medium: 

Blog
Website
Wiki

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)

Description: 

In January 2008, literary agent Barbara Bauer and her company Barbara Bauer Literary Agency, Inc. filed a lawsuit in New Jersey State court against twenty-two defendants, including the Wikimedia Foundation. The complaint includes claims for defamation, tortious interference with prospective business advantage, and conspiracy. According to court documents, the dispute revolves around statements made on a large number of websites and blogs describing Bauer as being among the "20 Worst Literary Agents" and claiming that she has "no . . . significant track record of sales to commercial (advance paying) publishers." The complaint also alleges that various defendants posted altered photographs of Bauer on the Internet and created YouTube videos, including "Crouching Snark, Hidden Draggon" and "Miss Snark's Happy Hooker Crapstravaganza," that allegedly defamed and belittle her.

With regard to Wikimedia, the complaint alleges that Wikipedia published false statements indicating that Bauer was "The Dumbest of the Twenty Worst" literary agents and that she has "no documented sales at all." It further alleges that Bauer informed Wikimedia about the allegedly false statements, and that the foundation "has refused to remove the statements from Wikipedia." Finally, it alleges that Wikimedia conspired with the other defendants to defame and interfere with her prospective economic advantage, without providing any details.

On May 1, 2008, Wikimedia moved to dismiss the complaint, arguing that section 230 of the Communications Decency Act (CDA 230), the federal law that shields providers and users of "interactive computer service[s]" from liability for defamation and other torts for publishing the statements of third parties, bars Bauer's claims as a matter of law. Wikimedia's memorandum in support of its motion also argued that, even if CDA 230 did not bar Bauer's claim, the underlying statements are protected opinion under the New Jersey Constitution and the First Amendment to the United States Constitution.

On May 20, 2008, WritersNewsWeekly.com wrote that the court will hear Wikimedia's motion to be dismissed from the lawsuit on June 6, 2008.

Update:

7/1/08 - Court dismissed the case against Wikimedia Foundation, ruling that section 230 of the Communications Decency Act barred liability for publishing the statements of others. The court left open the possibility that Bauer could amend her complaint to state a claim against Wikimedia.

Jurisdiction: 

CMLP Notes: 

Status checked on 6/02/08 (AAB)

Updated 1/29/09 - VAF

Content Type: 

Subject Area: 

Creation Science Evangelism v. Rational Response Squad

Date: 

09/16/2007

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Rational Response Squad

Type of Party: 

Organization

Type of Party: 

Organization

Publication Medium: 

Website

Status: 

Concluded

Description: 

In September 2007, Creation Science Evangelism (CSE), a creationist group founded by Kent Hovind, recently sent a raft of DMCA takedown notices to YouTube complaining that various user-posted videos infringed its copyrights in videos of its seminars. Among those users whose videos were taken down was the Rational Response Squad (RRS), an atheist group.

The videos flagged for removal were all critical of CSE, and some consisted of expression entirely original to the YouTube poster. Other videos used portions of CSE's own videos to make critical commentary about the organization.

RRS created a video -- Open letter to YouTube -- arguing that its videos were protected under fair use.

YouTube also canceled RRS's entire account for a time (the rationale for doing so is not clear), but later reinstated it. As of April 2008, CSE has not taken further action on the matter.

Jurisdiction: 

Content Type: 

Subject Area: 

Air Force DMCA-Bombs YouTubed Ad

Over at Wired's Threat Level blog, Kevin Poulsen reports on a new DMCA overreach: the U.S. Air Force complained (via outside counsel) about his posting of their recruiting video. The post, Poulsen says, was initially made at the Air Force's invitation.

Jurisdiction: 

Content Type: 

Subject Area: 

U.S. Air Force v. Wired/Threat Level

Date: 

03/05/2008

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Wired (Threat Level)

Type of Party: 

Organization

Type of Party: 

Organization

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

On March 5, 2008, a lawyer for the U.S. Air Force sent a DMCA takedown notice to YouTube, requesting that it remove a thirty-second Air Force promotional video posted to the site by Wired's Kevin Poulsen in connection with a February 27, 2008 article. The article described the Air Force's new recruitment drive as embodied in the promotional video:

The Air Force is going large with a new tech-themed recruitment drive sporting the tagline: "A Changing World." In this 30-second TV spot, cool headed airmen in the service's fledgling Cyber Command are seen combating one of the "three million" hacker attacks that target the Pentagon building every day.

YouTube removed the clip in response to the notice. According to Poulsen's post about the takedown, the Air Force originally sent the clip to him and thanked him for agreeing to run it. Wired is now hosting a copy of the video clip on its own servers.

The takedown notice is interesting given that U.S. government works generally are not copyrightable, but an indepdendent contractor may have created the promotional video and assigned its right to the government. How the law applies in those circumstances is less clear.

Jurisdiction: 

CMLP Notes: 

6/09/2008 - No updates found. (JMC)

Content Type: 

Subject Area: 

New Major League Baseball Restrictions on Press Credentials Hamstring Online Coverage

As an avid baseball fan, I should have been paying closer attention to the recent dispute over Major League Baseball's new restrictions on credentialing journalists who cover MLB games. A nice summary of the dispute on the Reporters Committee for Freedom of the Press' Sidebar Blog awoke me from my slumber.

Content Type: 

Subject Area: 

YouTube Removes “Shred” Parody Videos; WIRED Puts Them Back Up

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.

Content Type: 

Subject Area: 

Three Unnamed Guitar Heroes v. Ojala

Date: 

02/01/2008

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Santeri Ojala

Type of Party: 

Individual

Type of Party: 

Individual

Publication Medium: 

Website

Status: 

Pending

Description: 

Finnish media artist Santeri Ojala created a series of popular YouTube videos that parody legendary guitarists such as Steve Vai, Carlos Santana, and Eric Clapton. In the videos, Ojala overdubbed the guitarists' performances with his own (intentionally) bad guitar playing. The combination of the guitarists' rock-star stage antics and 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 early 2008, YouTube recieved three complaints regarding the videos, which appear to have come from artists that Ojala had parodied. YouTube disabled Ojala's account in response. According to Listening Post, a Wired.com blog, YouTube 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; the Listening Post quotes Google as saying that this would require that Ojala "hire a lawyer and appeal the artists' infringement claims."

It remains to be seen whether YouTube will reactivate Ojala's account or whether the videos will result in liability.

Update:

Ojala still is producing shred videos, as can be seen at his website.

Wired.com, which has covered the situation in a number of articles and blog posts, now hosts some of the videos.

Jurisdiction: 

CMLP Notes: 

6/09/2008 (JMC) - No developments found.

Content Type: 

Subject Area: 

Geller v. Sapient (Letter)

Date: 

10/02/2007

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Brian Sapient

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

US District Court for the Northern District of California

Case Number: 

3:07-cv-02478 VRW

Legal Counsel: 

Corynne Mcsherry, Jason Schultz, Marcia Hofmann (Electronic Frontier Foundation)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Description: 

Brian Sapient, a member of the "Rational Response Squad," a group which seeks to debunk what it considers irrational beliefs, posted a video on YouTube from the NOVA television program "Secrets of the Psychics," in which magician James Randi challenges the performance techniques of famous spoon-bender Uri Geller. The clip allegedly incorporated images from a film of Geller performing at a charity event in England, the copyrights to which were assigned by the film-maker to Geller's company, Explorologist. According to Sapient, this portion of the NOVA clip lasts only eight seconds.

Geller sent a DMCA takedown notice to YouTube, alleging that the NOVA clip infringed his copyrights in the charity performance film. As a result,
YouTube removed the video from its website and suspended Sapient's account.

On May 8, 2007, Sapient, with the help of the Electronic Frontier Foundation, filed a lawsuit alleging that Geller's takedown notice knowingly, materially misrepresented a claim of copyright infringement in violation of section 512(f) of the DMCA because no reasonable person could believe that the NOVA clip's use of the excerpted footage was not fair use. Sapient seeks damages, a declaratory judgment the video does not infringe Geller's copyrights, and an order restraining Geller from bringing further actions against Sapient in respect of the video.

(See also CMLP's entry for the related case, Explorologist v. Sapient, a suit brought by Geller's company against Sapient in Pennsylvania alleging that the publication of the footage breaches Explorologist's copyrights under UK law.)

UPDATE: Defendants filed a motion to dismiss the case due to lack of subject-matter jurisdiction, lack of personal jurisdiction, and insufficiency of allegations surrounding the content of the takedown notice. The defendants also moved to change venue to the Eastern District Pennsylvania, where the Explorogist v. Sapient case is being heard. On Feb. 4, 2008, the court granted the motion to dismiss as to personal jurisdiction, primarily because the DMCA takedown notice was sent from outside the United States. The court noted that Sapient may now bring his misrepresentation claim against Geller as a counterclaim in the Explorologist case.

Jurisdiction: 

Content Type: 

Subject Area: 

Universal Music Group v. Malkin

Date: 

05/03/2007

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Michelle Malkin

Type of Party: 

Large Organization

Type of Party: 

Individual

Publication Medium: 

Podcast

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

Michelle Malkin, a political commentator and columnist, publishes a daily video podcast called "Vent with Michelle Malkin." The video podcast appears on Malkin's conservative Internet broadcast network Hot Air and is also regularly posted on YouTube. In the May 2, 2007 edition of Vent, entitled "Akon's Assault," Malkin criticized hip hop artist Akon for being a mysogynist and supported her arguments with excerpts from Akon's music videos and video footage from a concert in Trinidad.

On May 3, 2007, YouTube removed "Akon's Assault" in response to a claim of copyright infringement by Universal Music Group (UMG), the company that distributes Akon's albums and other content.

Malkin, with the help of the Electronic Frontier Foundation, responded by sending a counternotice to YouTube, asserting that the video did not infringe UMG's copyright and was protected under the fair use doctrine. Youtube restored the video, and UMG retracted its claim of copyright infringement.

Jurisdiction: 

Content Type: 

Subject Area: 

Viacom v. MoveOn.org and Brave New Films

Date: 

03/13/2007

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

MoveOn.org; Brave New Films, LLC

Type of Party: 

Large Organization
Media Company

Type of Party: 

Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Northern District of California (lawsuit in response)

Legal Counsel: 

Fred von Lohmann, Lawrence Lessig, Anthony T. Falzone (MoveOn and Brave New Films)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

MoveOn.org, a progressive political organization, and Brave New Films, LLC, a politically oriented film company, created a video parodying Comedy Central's Colbert Report. The video, entitled "Stop the Falsiness," shows clips of the Colbert Report interspersed with tounge-in-cheek "commentary" from MoveOn activists and other political personalities, including liberal pundit Al Franken and Democratic sentator Russ Fiengold. MoveOn and Brave New Films uploaded the video to YouTube in August 2006. They also published it on a separate website, Stop the Falsiness.

On or about March 13, 2007, Viacom, the corporate parent of Comedy Central, delivered a takedown notice to YouTube pursuant to section 512(c) of the Digital Millennium Copyright Act, apparentl asserting that "Stop the Falsiness" violated its copyright and requesting that it be taken down. (Although Viacom later disputed sending the takedown demand, a notice appeared on YouTube on March 13, 2007 indicating that the video had been removed due to a copyright claim by Viacom, and Viacom ultimately relented.)

MoveOn and Brave New Films responded by suing Viacom under section 512(f) of the DMCA for knowing, material misrepresentation of its claim of copyright infringement with regard to the video. The suit was based on the argument that the video was so clearly a fair use that Viacom could not have asserted in good faith that the clip infringed its copyright. Viacom responded with a letter to the lawyers for MoveOn and Brave New Films, indicating that Viacom could not confirm sending the takedown notice and stating that Viacom had "no problem with your client's continued use of [the video] on its website or on YouTube."

That did not completely satisfy MoveOn and Brave New Films, and further negotiations took place between the lawyers. Eventually, Viacom agreed to adopt new policies enabling YouTube users to complain directly to Viacom about mistaken takedown notices and affirming the company's respect for fair use of its copyrighted materials. MoveOn and Brave New Films then dismissed the suit.

Jurisdiction: 

Content Type: 

Subject Area: 

Church of Scientology v. Gawker

Date: 

01/15/2008

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Gawker Media

Type of Party: 

Large Organization

Type of Party: 

Organization

Legal Counsel: 

Gaby Darbyshire (Gawker Media)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

A nine-minute video featuring Tom Cruise excitedly proclaiming the virtues of Scientology was leaked onto the Internet. Gawker, YouTube, and other sites posted the video. The Church of Scientology's lawyers sent out cease-and-desist letters and emails to a range of re-publishers, most of whom removed the video. Gawker Media refused to comply.

On January 15, 2008, the Church of Scientology (through counsel) sent an email to Gawker Media alleging that posting the video on Gawker and Defamer (another Gawker Media site) violated its copyright and demanding its removal. The Church also asserted that "several criminal laws are implicated since this work was stolen," citing theft (California Penal Code 484 et seq); receiving stolen property (California Penal Code 496); and interstate transporting or transmission of stolen goods (18 U.S.C. 2314), but did not directly accuse Gawker of committing any of these criminal offenses.

Gawker responded to the Church via email, rebuffing the criminal claims and asserting fair use:

We are using this video in the context of news reporting and critical commentary, which are uses that may not be authorized by your client, but which serve the public interest. For this, and other reasons, we believe our use is fair. We further do not accept that we have broken any criminal laws in publishing it, and in any event, several of the statutes you cite are inapplicable in this case.

The video is still posted on Gawker, and the Church is believed to be considering legal action.

Jurisdiction: 

CMLP Notes: 

Status checked on 6/3/2008 (AAB)

Content Type: 

Subject Area: 

Slandering Sandwiches and User Submitted Content

Our very own Sam Bayard popped up today in a New York Times article about the Subway v. Quiznos lawsuit, humorously named: "Can a Sandwich be Slandered?" The article does a good job highlighting the complicated issues involved in the case (and implicated by company sponsored competitions for "homemade commercials" generally).

Content Type: 

Subject Area: 

Prince v. Prince Fan Sites

Date: 

11/06/2007

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Princefans.com, Prince.org, and Housequake.com

Type of Party: 

Individual

Type of Party: 

Organization

Publication Medium: 

Website

Status: 

Pending

Description: 

Lawyers for the musician formerly known, and now currently known, as Prince have sent cease-and-desist letters and at least one DMCA takedown notice to the three largest Prince fansites, Prince.org, Princefams.com, and Housequake.com, demanding that they remove all photographs, images, lyrics, album covers, and anything linked to Prince's likeness.

The fan sites were also requested to provide Prince's lawyers with "substantive details of the means by which you propose to compensate our clients [Paisley Park Enterprises, NPG Records and Anschutz Entertainment Group (AEG)] for damages."

The fansites formed a coalition, Prince Fans United (PFU), which has issued a press release saying that the letter campaign goes too far, effectively stifling critical commentary and impinging on freedom of speech. It does not appear that a lawsuit been initiated.

Update:

3/13/2008 - Prince Fans United reported that negotiations between the coalition and Prince were at a standstill for unknown reasons.

Jurisdiction: 

CMLP Notes: 

Status updated on 6/6/2008 (AAB)

Content Type: 

Subject Area: 

Mashups, DVD Ripping, and Fair Use

Chris Soghoian at CNET Blogs published an interesting post yesterday -- Did Slate violate copyright law? It talks about a hilarious mashup video that Slate posted a few days ago called Hillary's Inner Tracy Flick, which juxtaposes images from the 1999 film Election and current footage of presidential hopeful Hillary Clinton.

Content Type: 

Subject Area: 

Gawker Defies Demand from Church of Scientology to Remove Creepy Tom Cruise Video

Earlier this week, a promotional/inspirational video for the Church of Scientology featuring Tom Cruise began circulating online. The video is bizarre -- against the background of what sounds like the Mission Impossible theme, Cruise extols the virtues of Scientology and urges viewers to embrace its ethics and worldview. Among many, many other things, he drops gems like "We are the authorities on getting people off drugs. We are the authorities on the mind.

Content Type: 

Subject Area: 

Explorologist v. Sapient

Date: 

06/12/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Brian Sapient

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Eastern District of Pennsylvania

Case Number: 

07-1848

Legal Counsel: 

Chad Cooper, Samuel W. Silver

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (partial)
Settled (total)

Description: 

In May 200, Explorologist Limited, a company incorporated in the United Kingdown by paranormalist Uri Geller, brought a lawsuit against Brian Sapient, a member of the Rational Response Squad. The dispute revolved around two videos posted by Sapient on YouTube. One video was a clip from a NOVA television program "Secrets of Psychics," in which magician James Randi challenges the performance techniques of Geller ("NOVA clip"). The NOVA clip allegedly incorporates images from a film of Geller performing at a charity event in England, the copyrights to which were assigned by the film-maker to Explorologist. According to Sapient, this portion of the NOVA clip lasts only eight seconds. The second video showed Sapient himself discussing Geller's performances ("Sapient clip").

Explorologist sued Sapient in federal court in Pennsylvania, alleging that posting the NOVA clip violated its UK copyright in the charity performance film, and that Sapient defamed the company and Geller in their trade (commercial disparagement) and misapproriated Geller's name and likeness "for his own benefit and commercial purpose." Sapient moved to dismiss the lawsuit, and in October 2007 the court dismissed the commercial disparagement claim for failure to properly plead damages with specificity. The court refused to dismiss the other claims, but expresed its initial reservations about whether the claim against Sapient is actionable under UK copyright law, because it is derivative on a claim against YouTube, whose server is located outside the UK.

Update:

2/15/2008 - Explorologist moved to dismiss the case due to its inability to produce a foreign witness for a deposition in Philadelphia.

2/22/2008 - Sapient moved for leave to file an amended answer and counterclaims against Explorologist.

6/3/2008 - Court ruled that Explorologist's motion to dismiss and Sapient's motion to file an amended answer will be heard, if necessary, after settlement negotiations are completed.

8/4/08 -  The parties settled the lawsuit.  As part of the settlement, Explorologist agreed to license the disputed footage under a non-commercial CC license, to avoid future disputes about fair use of the material. A montetary settlement was reached, but the terms are not public.

Jurisdiction: 

CMLP Notes: 

Status updated on 6/4/2008. It sounds like the parties may be settling, though Sapient's got several counterclaims in the works. (AAB)

Content Type: 

Subject Area: 

Chinese Citizen Journalist Beaten to Death by City Officials

This is terrible news. CNN and TechCrunch reported Friday that city officials in central China beat a man to death for attempting to record a protest on his mobile phone.

Jurisdiction: 

Content Type: 

Subject Area: 

Report Examines Use of Copyrighted Material in Online Videos, Finds Free Speech Rights Threatened

A new study conducted by the Center for Social Media at American University has found that many online videos use copyrighted material in ways that are likely to be fair use under copyright law, yet these uses are currently threatened by anti-piracy measures online.

Content Type: 

Subject Area: 

In re Douglas McCullough YouTube Video

Date: 

01/01/2007

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

YouTube

Type of Party: 

Large Organization
Intermediary

Publication Medium: 

Website

Status: 

Concluded

Description: 

On October 31, 2007, Doug Clark of the Greensboro News-Record wrote a blog post about a campaign speech made by Douglas McCullough, a North Carolina Court of Appeals judge, to a group of Republican supporters. During the speech, McCullough made statements implying that voting for a fellow Republican candiate, N.C. Supreme Court Justice Bob Edmunds, would help Republicans fair better in redistricting litigation that would come before the N.C. Supreme Court in the future. In the post, Clark originally linked to a video of the speech posted on McCullough's campaign website. When the video was removed from the campaign website, he provided a link to the video on YouTube.

Blogger and law professor Eugene Volokh noticed that Clark's YouTube link led to a notice that the video had been removed due to a third-party copyright claim. Volokh surmised that McCullough or someone connected with him had filed a DMCA takedown claim to remove the video. Volokh commented on the potential fair use defense available to whomever actually posted the video:

This takedown strikes me as quite troublesome: The posting of the video seems very likely to be fair use, because it was for purposes of news reporting and political commentary, and because it was highly unlikely to at all affect the market for the video (since the market likely didn't exist). More broadly, the judge is hiding important information from the public, information that he shouldn't be trying to conceal even if copyright law allowed such concealment. If anyone has a copy of the video and can point me to it, or e-mail it to me, I'd love to see it, and post it if it strikes me as newsworthy.

The page with the takedown notice still exists, but the video has been re-posted to YouTube and remains available at the new URL.

Content Type: 

Subject Area: 

CMLP Notes: 

The current YouTube video version has been up for a month at this point, so I doubt anyone is pursuing the takedown route anymore... there's no way to find out who sent the takedown claim to YouTube, is there?

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