Today, EFF and Stanford's Fair Use Project dismissed a lawsuit brought last month on behalf of MoveOn and Brave New Films against Viacom for the improper removal of a YouTube video that included clips from The Colbert Report.

We dismissed the case because Viacom acknowledged their mistake, told us about the policies it has put in place to protect fair use on YouTube, and agreed to introduce improvements to those policies. In the end, we were impressed by Viacom's willingness to give plenty of breathing room to the noncommercial, transformative creativity that has flowered on video sharing sites like YouTube.

In particular, Viacom confirmed that a human reviews every clip before issuing a DMCA takedown, and that Viacom steers clear of arguable fair uses. Moreover, Viacom has clarified that:

"Regardless of the law of fair use, we have not generally challenged users of Viacom copyrighted material where the use or copy is occasional and is a creative, newsworthy, or transformative use of a limited excerpt for noncommercial purposes."

Finally, where mistakes are made and videos are mistakenly taken down despite these safeguards, Viacom has committed to creating an email and website "hotline" that individuals can use to get prompt (1 business day) review and, where a mistake has been made, restoration of their videos.

We applaud Viacom's efforts to give plenty of breathing room to new forms of creative, transformative creativity—the mashups, lip dubs, and parodies that are launching a new kind of participatory media. Rather than insist on arguing over the precise scope of fair use under copyright law, Viacom has decided to forbear when it comes to DMCA takedowns. We hope other media companies follow Viacom's lead.

Related Issues