June 20, 2007 | By Fred von Lohmann

Viacom Nets, Releases Another Fair Use Dolphin

When a company like Viacom sends more than 160,000 DMCA takedown notices to YouTube, there is a risk that some fair use "dolphins" will get caught along with the infringing "tuna." Well, another "dolphin" got caught up in the DMCA takedown driftnet. Thanks to the "hotline" established by Viacom at EFF's urging, however, this time the creators of the video were able to get the mistake corrected.

The video in question is "10 Things I Hate About Commandments," an example of the new genre of movie trailer mashups that has blossomed on YouTube (see below - it really is very funny). The video combines video from the classic Charleton Heston film, The Ten Commandments, with an audio track reminiscent of the teen comedy, "10 Things I Hate About You." The video has been hugely popular, with over 1.6 million views on YouTube.

Last week, Paramount Pictures (a unit of Viacom) apparently sent a DMCA takedown notice to YouTube, resulting in the removal of the video. This appears to be inconsistent with Viacom's stated policy of giving fair uses a wide berth.

So after the creators contacted EFF, we urged them to test out the "dolphin hotline," which Viacom created after getting into hot water for mistakenly taking down MoveOn.org's "Stop the Falsiness" video. The idea of the "dolphin hotline" was to give people who have had their videos improperly removed an informal, quick way to ask for the mistake to be fixed.

To Viacom's credit, they withdrew their takedown notice today, 4 business days after the creators sent an email to the hotline address (counternotices@viacom.com), and the video is now back up. That's better than the formal DMCA counter-notice procedure, which doesn't get a video restored for 10 business days. But it falls short of Viacom's stated goal of 1 business day turnaround. Nevertheless, we're glad that Viacom's informal DMCA "dolphin hotline" works. Creators who have their materials improperly taken down by Viacom or its subsidiaries now have someplace they can go for prompt review.

But this latest incident shows that we still have a way to go in the effort to target infringement without inflicting collateral damage on fair users. EFF continues to work with YouTube, Viacom, Stanford's Fair Use Project, and others to help develop DMCA takedown "best practices" that will hopefully improve the situation for those who are making "remix culture" a reality.

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