San Francisco - The Electronic Frontier Foundation (EFF) backed Viacom Monday in a lawsuit over a parody of a popular online video called "What What (In the Butt)," arguing that South Park's reimagining of the work is a clear case of fair use and that the district court's early dismissal of the case was correct.

South Park aired the "What What" parody in a 2008 episode critiquing the popularity of absurd online videos. Two years later, copyright owner Brownmark Films sued Viacom and Comedy Central, accusing South Park of infringement. A federal judge dismissed the case, calling it a clear fair use. Brownmark appealed to the 7th U.S Circuit Court of Appeals, claiming that fair use cannot be decided on a motion to dismiss, no matter how obvious. In an amicus brief filed Monday, EFF argued that Brownmark is asking for a standard that would chill free speech and encourage frivolous litigation.

"Brownmark is asking the appeals court for a rule that would make it much more difficult to resolve easy fair uses cases quickly. That would discourage artists and others from fighting claims, no matter how baseless, or even engaging in the fair use in the first place," said EFF Fellow Michael Barclay. "The judge in this case got it exactly right: when the fair use is obvious, the case should be decided right away."

Courts in the 9th and the 10th circuits have already decided that it's proper to dismiss some copyright cases during the pleading stages on fair use and other grounds. These rulings are important in fighting back copyright trolls, who depend on the threat of legal costs to encourage people to settle cases even though they might have legitimate defenses.

"Fair use – using some copyrighted material for the purposes of art, education, or commentary – is an important part of how we communicate today. We see it everyday in segments on The Daily Show, in political advertisements, and in 'remix' videos on YouTube," said EFF Staff Attorney Julie Samuels. "We can't let litigious copyright holders chill free speech by making it more expensive."

For the full amicus brief in Brownmark v Comedy Partners:


Julie Samuels
   Staff Attorney
   Electronic Frontier Foundation

Corynne McSherry
   Intellectual Property Director
   Electronic Frontier Foundation