March 22, 2007 | By Fred von Lohmann

MoveON, BNF v. Viacom: Update

On behalf of and Brave New Films, EFF and Stanford's Fair Use Project today filed a lawsuit against Viacom for improperly issuing a DMCA takedown notice to YouTube over "Stop the Falisiness," a humorous video built around clips from The Colbert Report.

Viacom promptly responded in a letter, saying that they have no objection to the video and that "any takedown notice most likely did not come from us." That's interesting, because (1) the YouTube page specifically says that the video was removed due to a copyright complaint from Viacom; (2) YouTube's counsel verbally confirmed that the video was removed due to the DMCA takedown from Viacom; and (3) after sending a counter-notice to YouTube, Brave New Films received an email from well-known online copyright enforcer, BayTSP, apologizing for the mistake and asking that any questions be directed to

So perhaps Viacom would like to recheck the "careful records" it purports to keep, and give us something more than an assurance that it "most likely" was not their DMCA notice that took the video down.

This underscores the problem: with Viacom sending more than 160,000 DMCA takedown notices, it may not even be aware which videos it told YouTube to remove. If that's right, then Viacom will inevitably end up censoring some perfectly legitimate videos - surely, the MoveOn/Brave New Films video is not the only example of a fair use that got caught in Viacom's driftnet. And not everyone has the ability to file lawsuits or publicly call Viacom out on the carpet. As MoveOn's Eli Pariser said earlier today, 'With this lawsuit, we are making clear that corporations like Viacom must not be allowed to muzzle independent video creators and censor their free speech."

Viacom has also said that it "has no problem with" the video being reposted. While that is a welcome acknowledgement of fair use, we would still prefer a world where fair uses are not taken down by improper DMCA takedown notices in the first place. After all, if Fox got The Daily Show pulled off the air for running a clip from Fox News, Viacom wouldn't be satisfied with an "oops, we didn't mean it" the next day.

Update on March 23:YouTube has reposted the video, including all the comments left about it.

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