Case Studies in Fair Use Abuse

The case against Viacom for issuing a bogus takedown notice for a parody video which used clips of The Colbert Report has been dropped by lawyers from the Electronic Frontier Foundation and Stanford Law’s Fair Use Project. Viacom, which had denied issuing this particular takedown request to YouTube but has since recanted, publicly promised it will honor the use of “a limited excerpt for non-commercial purposes,” according to the release from the EFF.

While Viacom maintained that it had no problem with the content of the clip, which was produced by MoveOn and Brave New Films, the implications of powerful organizations being able to get clips pulled with just the click of a button or call to YouTube’s headquarters was enough to make the EFF apprehensive, and with good reason. While in this case, Viacom’s motivation likely wasn’t to stifle dissent (accidental error made in a fit of rage is more like it), it is still a potential issue.

To illustrate such a worst-case scenario of inappropriate behavior by a wealthy rightsholder toward work critical of that rightsholder, I present the story of The Bridge — “the first feature film about Scientology.”

Shot in five days in Norway Memphis by film student Brett Hanover, it’s an admirable effort by a first-time filmmaker, but the production value is minimal and the structure episodic, making for a somewhat wooden narrative. But the premise and script were helped by efforts from former Scientologists and anti-cultists to craft an allegorical critique of the Church of Scientology.

The movie features all sorts of insider references, including clips from videos produced by the church, church practices such as auditing, and even the church’s custom web filter.

After screening his film at the Memphis Film Festival, Hanover released it online last September, and the credits declare “The Bridge is licensed as royalty-free digital media, and may be distributed online for personal viewing without permission.” While elements of the film are owned by the church, it’s pretty clear in my lay opinion that in the context of the film it’s fair use.

A few weeks later, Hanover pulled the movie from his site and requested that other people who had posted it remove it also, with statement saying only “due to copyright issues, I ask that this film be withdrawn from circulation… Do not contact me concerning this film, I am no longer supporting it.” That statement, and all other traces of the film, have since been removed from his site, other sites which promoted the film and even the Internet Archive, which cited rights issues.

Longtime anti-Scientology activist Mark Bunker of XenuTV suggested that Hanover was pressured by the church to pull the footage, which certainly isn’t far-fetched. The church has a legacy of using copyright issues to try to silence opposition, relying on the DMCA to lobby everyone from Google to a Canadian ISP to purge documents and links to those documents it considers infringing or promoting infringement.

With the recent news about “Claim Your Content”, my concern is that by building a tool for legitimate rights holders to police their content, Google will also enable those who would abuse it. The company has yet to reveal how it plans to restore content as quickly and easily as it can be taken down, and its decisions to favor business potential over freedoms of speech are still growing, even after its China debacle.

If an organization like Scientology can use copyright law as a bullying tactic to censor video content like The Bridge, imagine what a national party, government or international corporate conglomerate could do.

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