May 7, 2009 | By Tim Jones

YouTube Restores A Fair Use

About a week ago, blogger Perez Hilton issued a DMCA takedown notice, asking YouTube to remove a video created by the National Organization of Marriage (NOM). The video used a clip from Hilton's blog in which he strongly criticized Miss California USA Carrie Prejean, in response to comments she made criticizing gay marriage.

NOM's use of Hilton's video clip was clearly fair and non-infringing — it is brief, transformative, critical, and does not pose a competitive threat to Hilton's market. As such, Hilton's takedown notice was, like takedown notices from Universal Music, Warner Music, Uri Geller and Michael Savage before him, a baseless attack on free speech.

Here's what's different about this takedown: NOM's lawyer asked YouTube to restore the video immediately, rather than keeping it off-line for the standard 10-14 business day counternotice period. And YouTube, after doing its own fair use analysis, agreed and obliged.

YouTube's decision is both laudable and perfectly sensible — as we've often noted, there's no need to follow the DMCA safe harbor procedures if the disputed content is a clear fair use and, as a result, there's no risk of liability.

That said, NOM's sudden championship of fair use rights is striking, considering that NOM appears to have sent a slew of improper takedown notices of its own recently. The irony is palpable, especially for critics of NOM who've been denied the same free speech rights that NOM is now enjoying.


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