I believe posting the clip falls under "fair use", just like quoting a small part of a book. Here are four criteria for fair use. It looks to me like my use does well for for 1, 3, and 4, and is neutral for 2. I added to the work (by adding commentary and a perspective that was lacking in the original presentation). I used a small, insubstantial portion of the show as a whole. It wasn't a key scene for plot purposes, and no one would skip watching or buying the show just because they saw my clip. My use has no negative affect on their market (in fact it's positive because it helps advertise the show).
The youtube informational pages make a strong effort to tell me that if I disagree with the removal of the clip, I may get in legal trouble. Basically, they tell Viacom who I am personally and then the only possible results of a counter-notification are Viacom files a legal motion or the clip goes back up. That's crazy. Why can't we try to talk it out? Just a few brief emails back and forth, and if we don't agree quickly then stop talking. I would like to tell them why I think it's fair use, and hear why they think it isn't. If they have good reasons, I could change my mind about posting the clip. If they have bad reasons, then I'd be less scared of a lawsuit, and I'd have the option to publish their reasons and make fun of them. The people in charge of searching youtube for clips to be taken down might learn something as well.
The description of what to include in the counter-notice and the sample counter-notice do not have any space for explaining why my use was fair use, or giving any reasons or arguments. I just swear, under penalty of perjury, that I didn't infringe on copyright, and get sued if they think I'm wrong, and no one explains themselves until court.
That is too much trouble for too little benefit. Even though I believe I'm right, and I would like to hear why Viacom belives this is not fair use, I am not going to file a counter-notice. I would take a legal risk, and in the best case scenario I still wouldn't hear any reasons from Viacom, the clip would just silently go back up. So it seems to me that Viacom can get whatever they want taken down *risk free*, without ever giving any kind of explanation or reasoning. If they are wrong and challenged, they can just drop it. They never have to justify their original claim.
And by the way, my video had a grand total of 67 views. That's even less than my other video which is 13 seconds of Safari loading an image while I roll my mouse. (I hope Apple doesn't sue me for providing part of the OS X experience for free!)
Dear Member:
This is to notify you that we have removed or disabled access to the following material as a result of a third-party notification by Viacom International Inc. claiming that this material is infringing:
Destroying Privacy: (http://www.youtube.com/watch?v=1u0w07ELJds)
Please Note: Repeat incidents of copyright infringement will result in the deletion of your account and all videos uploaded to that account. In order to prevent this from happening, please delete any videos to which you do not own the rights, and refrain from uploading additional videos that infringe on the copyrights of others. For more information about YouTube's copyright policy, please read the "Copyright Tips" guide: http://www.youtube.com/t/howto_copyright.
If you elect to send us a counter notice, please go to our Help Center to access the instructions:
http://www.google.com/support/youtube/bin/answer.py?answer=59826
Please note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
Sincerely,
YouTube, Inc.
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