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Copyright Counter-notice: Do it Right

Many of you will have read my previous post where I was afraid to make a Copyright Counter-notification to defend one of my youtube vids.

I'm glad to report that I went ahead and made the counter-claim and today youtube restored the video!

http://www.youtube.com/watch?v=iVyJq6Y_vdc

My counter claim was based on my interpretation of Fair Use as it applies to the DMCA. I stated the following:

This video is fair use under U.S. copyright law because it is 1) non-commercial, 2) vastly transformative in nature, 3) uses small amounts of this and other works, as necessary for the video's message, and 4) does not compete with the original work and could have no negative affect on it's market.

Now, when I say small amounts here, I really mean small amounts. The copyright claimant was Shin-ei animation. Of the many anime in my vid, the only one I could think of that was a Shin-Ei owned show was Jungle Wa Itsumo Hare Notchi Guu. The footage from that show amounts to 4 seconds of footage and of that footage most of the frames are looped. In addition to those 4 seconds, there are about 16 rotoscoped frames that I take from the show and put on a swirly background. That's it. In the whole video. 4 and half seconds of footage from an entire animated tv show.

What astonishes me is that either someone from Shin-Ei watched the video or the just saw the show listed in the tags and filed a counter-claim based on that. If it's the latter, and if they didn't really watch the video, then I see that as copyright trolling plain and simple.

It's possible that I was wrong and that they also own the copyright on other shows I used but as youtube didn't tell me the details of the copyright claim I had to guess. Also interesting is the point that while Shin-Ei did a claim on the whole video, prior to that the audio had been removed due to ownership by WMG. The result of my counter-notification has restored both parts of the work. I assumed that the copyright cliam would have been for the video only and that my counter-claim was to that claim alone (I specified the video in the counter-claim).

This leaves many unanswered questions. Did Shin-Ei falsely make a claim on the both video and audio? Did youtube send my counter-notification to both Shin-Ei and WMG?

To me, it seems like we have copyright owners throwing copyright claims on anything to looks vaguely infringing in the hope that people wont counter-claim, youtube fulfilling the legal right to counter-claim by sending the notification to the claimant who will then just ignore it because it's not worth their time or effort to analyse the claim any closer and finally youtube switching videos back on after the mandatory 14 days of no reply, regardless of whether both video and audio have been sufficiently covered by a counter-notification!

On one hand, I'm much more encouraged to make a counter-claim against Studio Ghibli who have blocked the youtube version of With One Accord (which is a not-for-profit parody of an Evangelion episode). I think most counter-claims would just happen by default as I really don't think most of the copyright holders are taking the time to properly assess the claims made.

If anyone has any questions about this, please ask. My advice on this to be cautious but consider favourably doing counter-notifications for situations like mine. Oh and talk to the OTW because they helped me get my thoughts together and they have very smart folks who know a lot about this stuff.

Also, share your experiences, good or bad. It's important for vidders and other creators of derivative media to understand what it normal and what has worked and what hasn't. There are risks but I think with more examples we can get a better feeling for those risks and not feel so bullied by the process, like I did at first.

This entry has been crossposted to my Dreamwidth account, and it currently has replies there. Comment on whichever site you prefer.

Comments

( 11 comments — Leave a comment )
doki
Jul. 12th, 2011 10:05 pm (UTC)
"To me, it seems like we have copyright owners throwing copyright claims on anything to looks vaguely infringing in the hope that people wont counter-claim"

On a similar note I read this today... Who owns the copyright on a picture taken by a monkey? :)
http://www.techdirt.com/articles/20110712/01182015052/monkeys-dont-do-fair-use-news-agency-tells-techdirt-to-remove-photos.shtml
miraba
Jul. 12th, 2011 10:22 pm (UTC)
Glad to hear it worked out for you.
kyburg
Jul. 12th, 2011 10:25 pm (UTC)
I'm so proud. Good for you!
(Deleted comment)
absolutedestiny
Jul. 12th, 2011 10:33 pm (UTC)
For Content-ID matches, yeah, totally. But I'm just surprised that it found so little footage in the whole vid, especially when that footage was often composited into other things!
solaristist
Nov. 7th, 2011 07:23 pm (UTC)
18 seconds minimum is the current YouTube limit for detecting clips as far as I am aware.
scintilla72
Jul. 12th, 2011 11:03 pm (UTC)
I'm a little ashamed that, when I read your post topic, the first thing I thought was that you were going to explain to people the right way to do a counter-claim and exhort them to do them right.
coderjoe
Jul. 12th, 2011 11:57 pm (UTC)
A few years ago, I made a stupid Heroes/Dear Sister parody clip the night the episode aired. I got a DMCA request for the video, which I disputed (after about a week of deliberation) with no response from NBC (it may have been an automated match on the NBC bug, since I didn't remove the logo). Sometime over the following year, I got a notification that the audio was being muted due to a content match for WMG content. For at least 6 months, I was not able to file a dispute, as youtube did not allow more than one dispute to be filed. I finally was able to file a dispute and get it unmuted at some point, but I don't remember when. I have not heard anything from WMG, either, but I only used about 30 seconds from the end of Hide and Seek, so they might have determined it wasn't worth it.
renenet
Jul. 13th, 2011 01:46 am (UTC)
Rock on, you! I'm glad you bit the bullet and counter-claimed, and I'm glad the video has been restored without further drama. Thank you for standing up for your rights as a transformative artist and for sharing this story with the community.
anoel
Jul. 13th, 2011 02:27 am (UTC)
Yeah I've counter-claimed like 8 times and every single one they restored. It was just annoying when they retook down my vid a day after I got it back up. All I write in the comment box is that it's fair use now.

Glad yours turned out okay!
absolutedestiny
Jul. 13th, 2011 09:48 am (UTC)
They took down a vid after it had been restored with a counter-notice?

Was it the same copyright holder or a different one?
jarrow
Jul. 13th, 2011 08:24 am (UTC)
I'm so glad it worked out! That's fantastic!
( 11 comments — Leave a comment )