Copyright Infringement Comes Full-Circle?

August 31, 2007 12:45 AM

Viacom used my video without permission on their commercial television show, and now says that I am infringing on THEIR copyright for showing the clip of the work that Viacom made in violation of my own copyright! Writer, film-maker and "somewhat renegade Christian thinker" Christopher Knight (No, not the Brady Bunch kid. And yes, I'm as disappointed by that as you are.) fights back via his blog, with links to his original material. The show in question is Vh-1's Web Junk 2.0, and the clip in question was removed from YouTube, but preserved for posterity by Political Soup (A .wmv file here).
posted by amyms (48 comments total)

D:

At first I thought the black dude was Christopher Knight, and I couldn't tell who the vulcan-looking virgin in the background was.

Then I watched the video.

God....my brain....it......hurts

*dies*
posted by Avenger at 12:53 AM on August 31, 2007

He's using copyrighted Star Wars material without paying for it. Maybe he should contact Lucas and pay the licensing fee. Whiny vulcan-looking virgin bitch.
posted by stavrogin at 1:04 AM on August 31, 2007 [1 favorite]

stavrogin said: He's using copyrighted Star Wars material without paying for it.

Some of the people on his blog pointed that out in the comments section. It's an interesting mix of "Yay for you!" and "You're an idiot!" (that is, if he hasn't culled anything out since I read it)
posted by amyms at 1:08 AM on August 31, 2007

Oh I'm totally having flashbacks right now to when the computer-club LAN kids picked on the kid who owned a "real" Starfleet uniform.
posted by SassHat at 1:11 AM on August 31, 2007 [1 favorite]

meh.

Mostly just proves what murky, stagnant pond copyright law has become.

I posted the segment featuring it on YouTube so that I could put it on this blog, just like I'd posted the original commercial.

If Knight posted his original material on YouTube and that's were VH1 pulled it from, any violation on VH1's part is probably between them and YouTube. Knight, on the other hand, posted something to YouTube he recorded from a broadcast.
He can argue that VH1 had no right to air his material (and that may be true), but two wrongs don't make a right. He still had no right to post VH1's broadcast to YouTube. And Viacom does what all big companies do in regard to intellectual property, they cover their ass.
posted by doctor_negative at 1:28 AM on August 31, 2007

He still had no right to post VH1's broadcast to YouTube.

He did. There is still something called fair use, although I'm sure Viacom would like it to go away. Well, for everyone else, I'm sure they'd like to keep it for their own nefarious uses.
posted by grouse at 2:11 AM on August 31, 2007 [1 favorite]

Viacom created an unauthorised derivative work of Knight's work. As an illegal work, they have no grounds to protect what's in that part of the VH1 segment, even their own added commentary.

Knight doesn't need a fair use defence to post the VH1 segment, as it's not a protected Viacom work - it never was. Anyone else posting the VH1 segment or the original video without permission from knight has violated his copyright though.

As for the use of the star wars material... it's clearly inspired by the star wars universe, but doesn't use actual clips from the films. It would probably classify as a parody, and thus he would have a fair-use defence against lucasarts.
posted by ArkhanJG at 2:36 AM on August 31, 2007 [1 favorite]

Viacom created an unauthorised derivative work of Knight's work. As an illegal work, they have no grounds to protect what's in that part of the VH1 segment, even their own added commentary.

That's utter bollocks. You're suggesting an infringing work is either in the public domain or owned by the infringee, neither of which make any sense. A fair use defense might be OK, although publishing it on YouTube might go beyond what's allowable.

OTOH, Viacom equally have a fair use defense, and it's also possible they licensed the clip from YouTube (which the T&Cs might allow, not sure), so its status as an infringing work is pretty questionable.
posted by cillit bang at 3:38 AM on August 31, 2007

how's this:

Viacom, fair use - but they don't own any rights in it.

His use of their programme (aside from the original) fair use.

How hard is that?
posted by lerrup at 3:49 AM on August 31, 2007

Aside from the legalities of this matter, and aside from how much the video sucked, it seems like TV producers are increasingly stealing from YouTube and then not letting their shit be shown on YouTube. Which is like emptying the entire give/take-a-penny into your pocket and walking out. If it turns out that they do have a right to do this, it still makes them assholes. The Onion's "The Hater" occasionally tracks how SNL steals ideas from YouTube, and here she asks the question: "How long do you think it'll be before NBC makes YouTube remove all clips of a sketch that is made up almost entirely of YouTube clips?"
posted by creasy boy at 3:57 AM on August 31, 2007 [6 favorites]

"How long do you think it'll be before NBC makes YouTube remove all clips of a sketch that is made up almost entirely of YouTube clips?"

It is sort of already proceeding down that path, at least at a certain level of abstraction.
posted by psmealey at 4:27 AM on August 31, 2007 [1 favorite]

Some of the people on his blog pointed that out in the comments section. It's an interesting mix of "Yay for you!" and "You're an idiot!" (that is, if he hasn't culled anything out since I read it)

But that's pretty much the problem here. Him and Viacom are both equally taking copyrighted content and showing it- in Viacom's case, for profit in the form of advertising revenue- and yet because Viacom is a giant company with lawyers, they get away with it. This kid's an "idiot" for using a stolen clip; VH1's got a hit TV show.

Viacom's just conforming to the tragedy of internet copyright, in that it's become universally acceptable to believe A. everything on the internet is free, and B. if you actually needed to spend more than 30 seconds on Google to find out who the copyright holder was for permission, you're allowed to plead ignorance.
posted by XQUZYPHYR at 4:29 AM on August 31, 2007

Dateline: The Internet

Blogger Enraged by Copyright Laws
posted by DU at 5:17 AM on August 31, 2007

And this is why you should read the fine print before you upload your content.
posted by smackfu at 5:49 AM on August 31, 2007

Sweet Jesus, this thread makes my head hurt. Reminds me of the time I spent three days talking to a Free Software Foundation rep asking if it was legal to write a plugin for a GPL'd program that used the include() function.
posted by verb at 6:09 AM on August 31, 2007 [3 favorites]

My understanding is that Viacom was in the wrong to air the segment without permission. Now that they've produced the new work, they own the copyright over it, but they can't actually do anything with it since includes another person's origional work

(In other words, Viacom owns a copyright on the voice over and commentary)

So, if the two sides wanted to fight it out, then no one would get to show the Viacom clip ever again. Which, frankly, wouldn't be a major loss. All they put on VH-1 these days is the most vapid sort of video filler.

But anyway, the video was probably detected by an automated system, rather then a person. If he can get someone at viacom to notice or care then he'll probably get the clip back up.
posted by delmoi at 6:13 AM on August 31, 2007

That's utter bollocks. You're suggesting an infringing work is either in the public domain or owned by the infringee, neither of which make any sense

I'm suggesting neither. The part created by christopher Knight is owned by him. The part created by viacom (the images and commentary) is owned by them. If they had licenced the right to make a derivative work from Knight, they would have the right to broadcast the entire combined derivative. They still have the right to broadcast their commentary without his video in the background, and that would be legal and protected by copyright.

As it stands, as a combined derivative work, viacom have no enforceable copyright on the VH1 segment, as it is an ILLEGAL derivative work.

Knight doesn't own viacom's commentary, but they can't successfully make a copyright infringement claim against him, or anyone else as they simply don't have a legal copyright to enforce. The only person with an enforceable copyright in the combined work is Knight.

Copyright is only one right to do with ownership of creative works; there are others.
posted by ArkhanJG at 6:54 AM on August 31, 2007

That Web Junk 2.0 show irked the hell out of me the one time I saw it. Hey VH1: 2.0 is pronounced 'two-point-oh', not 'twenty'. Jesus.
posted by Item at 6:55 AM on August 31, 2007

Let me use another example.

I take the latest Harry Potter book, and translate it to another language without permission, then put it on the internet. Despite that being a sufficiently original work that can be copyright protected, it's still a derivative work of JK Rowling's book.

As such, they can sue me for publishing an illegal derivative work. Meanwhile, the translation is still on the net, and someone prints it and starts selling it. I cannot sue that guy for publishing further copies of the translation, or claim a cut of his sales, as I simply never have a legal copyright on it.

However, JK Rowling can sue them as well as me, as they own the original work that my translation was derived from.
posted by ArkhanJG at 7:01 AM on August 31, 2007

As an aside - if viacom had only used part of his video, they'd pretty likely be able to use a fair use defence. Given they used the whole thing, and did it for commercial gain, that's really pushing the boundaries of a fair use claim.
posted by ArkhanJG at 7:05 AM on August 31, 2007

And this is why, at least among anyone below a certain age I've ever known anywhere, it's completely socially acceptable to download whatever you want and infringe copyrights all over the place.

I wonder whether, if corporations keep acting the way they do, some upcoming batch of kids will almost universally consider shoplifting from the Wal-Mart or the Best Buy about as bad a crime as driving 10 mph over the speed limit.
posted by TheOnlyCoolTim at 7:22 AM on August 31, 2007

The guy is a self publicity seeking dick. Don't feed his ego with any more attention. Don't click the link, he gets off on it.
posted by Webbster at 7:44 AM on August 31, 2007

It seems that you all are putting words into his mouth.

I was quite aware that they were using my own not-for-profit work for commercial purposes and that they should have contacted me. But I didn't really care that they were doing that, either. It was just nice to see something that I had worked on getting seen and appreciated by a lot more people than what I had intended for a local audience.

He wasn't angry that they used his commercial, he just thought (correctly) that he should have the same right they do.
posted by roll truck roll at 7:44 AM on August 31, 2007

Aaaaaand we're back to the "copyright infringement is exactly the same as stealing physical objects and I don't see how anyone could think otherwise" mefi trope.

ArkhanJG posted an excellent answer to this a while ago.
posted by uri at 7:48 AM on August 31, 2007

Yeah and moreover, to add to what Tim said, when a TV producer takes from the YouTube pile, they're basically admitting that a forum like YouTube fosters creativity -- or else they wouldn't be taking their ideas from YouTube. But then they refuse to let what they do go back into the YouTube pile, claiming copyright, thereby restricting the source of the creativity they profited from. Copyright law is in principle supposed to foster creativity, isn't it? But these guys pretty much blatantly profit from YouTube's free flow of content, and then immediately restrict the flow of content right afterwards so as to continue to maximize their profit -- i.e., leeching off of creativity. Even if it's not illegal, it's galling in its hypocrisy.
posted by creasy boy at 7:51 AM on August 31, 2007

After rereading your comment a few times, Tim, I fear I may have misinterpreted what you were trying to say. If so, I apologize.

ArkhanJG's comment still stands as being both well-written and pertinent.
posted by uri at 7:56 AM on August 31, 2007

Aaaaaand we're back to the "copyright infringement is exactly the same as stealing physical objects and I don't see how anyone could think otherwise" mefi trope.

If that's in response to me, that's not the angle I was going for. What I was on about was that the growth in dominance of public corporations has led to a breakdown in a sort of social contract: that you'd deal fairly with the corporation, and they'd deal fairly with you.

This has broken down pretty badly: it's clear that the majority of big corporations will screw you any way they can, and they can get away with a lot because they're buying laws and the legal system is out of reach of anyone with an average income. E.g. it's cheaper to pay thousands of dollars protection money to the RIAA than to go to court, whether or not you've been downloading. So, in response, people are no longer holding up their end of the bargain with regards to the media companies, and this is not being viewed negatively by their peers. Certainly the ease of copying and the fact that you are not depriving anyone of anything contribute to this, but there's a reason that arguments about the corporations not getting compensated for their "work" are falling on deaf ears - no one feels any social obligation to these corporations. I'm just wondering if this will extend beyond copyright - Wal-Mart would probably pay off some senators to reinstate slavery if they thought they could get away with it. At what point will that sort of behavior lead to the majority of people not feeling any twinge of guilt if they lift something from Wal-Mart?
posted by TheOnlyCoolTim at 8:06 AM on August 31, 2007 [2 favorites]

Moreover, Tim, I've been wondering for a while now whether it makes any sense to attribute moral personality to corporations, i.e. count as them people in moral calculations. In other words: taking from a person is theft, but taking from a beehive or a river is not considered theft because they're not people. In assuming that it's possible to "steal" from corporations we're assuming that corporations count as people. I'm not sure if this makes sense any longer. The problem with my idea is that it's hard to figure out where to draw the line. Taking from a mom-and-pop store is obviously stealing because there's a person behind the store; but I'm not sure if there's really a person behind the corporation in the same sense, it seems to me that corporations are more like mechanisms or like economic weather than like people, so it's harder to speak of immorality in their case. If this makes sense to anyone, please feel free to make it sound more articulate.
posted by creasy boy at 8:15 AM on August 31, 2007

Makes complete sense to me. For a long time I've considered corporations on the moral level of bacteria, and I guess bees are another good example. So I feed the bacteria in my gut and they perform very useful services such as keeping me from having the shits, but if I had a gut wound or something and they started going wild I would certainly not hesitate to wipe them out with antibiotics.

Read some science fiction story I can't quite remember where, to deal with this, the most powerful police force in a certain society was a sort of Antitrust Brigade that would come down and break up any organization that got too big.
posted by TheOnlyCoolTim at 8:22 AM on August 31, 2007

I'm suggesting neither. The part created by christopher Knight is owned by him. The part created by viacom (the images and commentary) is owned by them.

Yet you're saying they forfeited that copyright when they merged their work with Knight's work. I'm by no means a copyright expert, but that sounds like bollocks to me.
posted by cillit bang at 8:41 AM on August 31, 2007

I keep hearing people parrot his claim that his work was stolen, but that "fact" is not currently substantiated as far as I can see. When he uploaded his video, he gave YouTube considerable rights in using it (it is part of the agreement) and for all we know, Viacom and Youtube have an arrangement, meaning it was not stolen at all; in fact, he donated it. Perhaps he didn't read the agreement with youtube when he uploaded it.

In either case, I don't recall the part of the law that states it is ok to break the law if the other guy did it first.
posted by Bovine Love at 8:46 AM on August 31, 2007

I take the latest Harry Potter book, and translate it to another language without permission, then put it on the internet.

Harry Potter and the Boy Wizard Translator

"A French Harry Potter fan was arrested and held by police after allegedly posting a pirate translation of the young wizard's latest adventures on the internet.

The 16-year-old was apparently too impatient to wait for Harry Potter and the Deathly Hallows, the seventh and last in the bestselling series, to be published in French.

So he set about translating all 784 pages into the language of Molière himself, according to investigators. The first chapters were available for download a few days after the book came out in July and the complete text was online within days. The site has since been shut down."

posted by ericb at 9:32 AM on August 31, 2007

Fair use is decided case-by-case and is too risky to rely upon.
posted by bz at 9:47 AM on August 31, 2007

for all we know, Viacom and Youtube have an arrangement, meaning it was not stolen at all; in fact, he donated it. Perhaps he didn't read the agreement with youtube when he uploaded it.

You serious? This would constitute grounds for me to stop using Youtube altogether.
posted by phaedon at 10:17 AM on August 31, 2007

However, by submitting User Submissions to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the YouTube Website and YouTube's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the YouTube Website (and derivative works thereof) in any media formats and through any media channels.
Section 6C of YouTube Terms of Use

You don't need to be a lawyer to figure that out. You submit, they do what they want with it. That is the price of free publication.
posted by Bovine Love at 10:41 AM on August 31, 2007

There's absolutely no reason to believe that YouTube has licensed Knight's videos to Viacom. They aren't exactly buddy-buddy right now considering that Viacom has sued YouTube for $1 billion dollars. Yes, billion with a B.

You are grasping at straws.
posted by grouse at 11:05 AM on August 31, 2007

There's absolutely no reason to believe that YouTube has licensed Knight's videos to Viacom. They aren't exactly buddy-buddy right now considering that Viacom has sued YouTube for $1 billion dollars.

Companies sue each other while doing business with each other all the time; it is a very common occurrence. Interestingly, YouTube (and Viacom) have been completely silent on Viacoms usage of YouTube content.

This is hardly grasping at straws. The simple fact is that YouTube has the right to sell (or give away) the guy's content to Viacom, so his "my copyright has been violated" doesn't actually hold water; in fact, in lieu of a YouTube/Viacom agreement, it is probably YouTube that has a complaint. Fair use is a stretch for a whole, non-news, program featuring complete web video clips.
posted by Bovine Love at 11:16 AM on August 31, 2007

A French Harry Potter fan was arrested and held by police after allegedly posting a pirate translation of the young wizard's latest adventures on the internet.

Pirate translation, eh? "Avast ye! And hear the tale of HARRRRold PottARRRR and Them ThARRRR Deathly Hallows. ChaptARRR One!"
posted by jonp72 at 11:18 AM on August 31, 2007

YouTube (and Viacom) have been completely silent on Viacoms usage of YouTube content... it is probably YouTube that has a complaint.

That's because YouTube has neither copyright nor an exclusive license over user-submitted content. They can relicense it but they have no right to enforce the copyright holder's exclusive rights.

It's grasping at straws because you have no reason to believe that any such agreement exists; you just made it up out of thin air.
posted by grouse at 11:33 AM on August 31, 2007

Of course I have reason to believe it exists; otherwise, Viacom runs the risk can seriously run amok of a whole lot of peoples copyright. I didn't make up out of thin air, nor am I claiming that the agreement exists; I am just saying that the fellow's claims it was "stolen" are not necessarily true, since he has granted rights to the work. I also propose it would make sense for Viacom to have such an agreement. I think time will tell.

I will concede though that YouTube might have difficulty in this case pursuing Viacom; indeed, they can sell the content, but it doesn't mean they can sue if someone reproduces without their permission. Kind of an odd situation. However the actual owners are free to sue like crazy assuming there isn't an agreement between YouTube and whoever is reproducing the content...
posted by Bovine Love at 11:50 AM on August 31, 2007

"Youtube has absolutely not sublicensed the videos to Viacom. The two companies have no agreement, which was verified the last time I spoke to Viacom's attorney."
posted by Auz at 11:53 AM on August 31, 2007 [1 favorite]

Well, information wants to be free. LOL.
posted by fourcheesemac at 1:50 PM on August 31, 2007

I don't think YouTube has the right to give away content willy nilly. Here's that clause again...

However, by submitting User Submissions to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the YouTube Website and YouTube's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the YouTube Website (and derivative works thereof) in any media formats and through any media channels.

All that says is they can distribute his content on YouTube, and use it in advertising or promotion of YouTube. If the Viacom spot were a "best of YouTube", then they'd be able to permit it. Otherwise YouTube have no right to allow it.

Personally I think it's an open and shut case. He should sue and could probably expect substantial damages.

In fact, I wouldn't be surprised if YouTube wouldn't support his case. Their user agreement is careful to preserve copyright holders' rights - that's important to them, because otherwise rights holders would be reluctant to use their service. If Viacom were to successfully argue that this guy had implicitly given them rights to his material, simply by posting it to YouTube, then YouTube's business would suffer.
posted by mr. strange at 2:02 PM on August 31, 2007

All that says is they can distribute his content on YouTube, and use it in advertising or promotion of YouTube.

However, by submitting User Submissions to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the YouTube Website and YouTube's (and its successors' and affiliates') business including without limitation for promoting and redistributing part or all of the YouTube Website (and derivative works thereof) in any media formats and through any media channels.

Meaning they're allowed to redistribute your content, and all derivative works, in any formant through any medium. "The You Tube Website" is just stand-in for the content contained within the website, and I wouldn't think it has anything to do with only promoting "youtube.com" or runing ads.

They can give it to whomever they want. At least that's how I read it.
posted by SweetJesus at 5:55 PM on August 31, 2007

Hey VH1: 2.0 is pronounced 'two-point-oh', not 'twenty'. Jesus.

The show's title is Web Junk 20, actually.

/pedantry
posted by dhammond at 7:21 PM on August 31, 2007

That's too bad, the missing comment was relevant and interesting.
posted by Bovine Love at 7:53 AM on September 1, 2007

Yet you're saying they forfeited that copyright when they merged their work with Knight's work. I'm by no means a copyright expert, but that sounds like bollocks to me.

Copyright is the legal right to make copies. You can sue someone for infringing that right, by making copies of your work, when you hold the copyright.

The latter part is the key bit. When they don't have a legal right to make copies *themselves* because it's an infringing work to start with, they can't enforce the copyright they don't have against someone else. This only applies to the combined work, as broadcast.

Here's a very bad analogy. It's a bit like squatting in a house, and painting it. The owner comes back. You might have owned the paint, but he still gets to kick you out of the house and you don't get to charge him for the cost of painting his house because you never had the right to do so in the first place.
posted by ArkhanJG at 10:48 AM on September 1, 2007

That analogy sort of works for your translation scenario, but where we disagree is that I think the commentrary is essentially a separate creative work that happens to be on the same tape. By posting the VH1 clip to YouTube, he's publishing both his own work (legitimately) and Viacom's work (illegitimately).
posted by cillit bang at 5:23 PM on September 1, 2007