The funniest thing on YouTube right now isn’t the latest installment from Smosh, but the meta-ironic actions of a certain litigious content megalopoly in issuing takedown notices for content it doesn’t even have a clear claim to own.
Christopher Knight produced some humorously campy commercials for a local political campaign, and posted them to YouTube. Then he saw his commercials appear in VH1’s Web Junk without being contacted. When he then put up the clip of the show featuring his commercial, Viacom issued a DMCA takedown request, which YouTube promptly complied with.
Ah, the tangled web woven by derivative content! Does LucasFilm have a claim on the commercial because Knight used an image of the Death Star blowing a one room schoolhouse to smithereens? One could argue that it falls under parody. Does Knight have a claim on Viacom for using his material without permission? Viacom, by providing commentary about the clip, could claim fair use.
Chances are, the minions Viacom pays to keep YouTube scrubbed of their content probably found the clip after searching “VH1” or “WebJunk” and issuing a takedown without much thought. Viacom, after all, did no due diligence to discover the source (for instance, by contacting Knight through YouTube), so why should its police? Now, Knight could also have a claim for wrongful takedown, as he posted the clip alongside his own notes on YouTube.
Viacom, of course, can always throw lawyers at the problem. Last time they got caught being heavy handed with the nastygrams, they got away with admitting wrongdoing. Knight, on the other, is only getting the (sometimes good, mostly bad) advice from commenters on his blog — I’d recommend simply mailing a counter-notification form to YouTube, and maybe the clip will magically reappear. Then the ball is in Viacom’s court to open itself up to liability for issuing (yet another) improper takedown request.
The point here is that the rhetoric from content providers doesn’t jive with the reality of the creative process. No art or entertainment exists in a vacuum, especially once it’s been digitized and distributed on a network. It is simply impossible to impose the sort of granularity of ownership rights in the modern age that current regulations demand. Okay, maybe I’m a nerd for finding this drama far more entertaining than either the original clip or the VH1 show. But c’mon, it’s hilarious, no? Good times.