As I've previously argued, the video at issue -- which includes about 1 minute, 20 seconds of CNN footage of reporter Susan Roesgen conducting contentious interviews with protesters at an April 15 Chicago rally, as well as about 2 minutes, 30 seconds of footage shot by Founding Bloggers -- is a non-infringing fair use of CNN's material; thus I believe the DMCA notice was improper. CNN owns copyright in its own footage, but its rights are limited by the Copyright Act's fair use provision, which specifically mentions "criticism, comment, [and] news reporting" as protected uses that are "not an infringement of copyright." Founding Bloggers' incorporation of the CNN footage was clearly for the purpose of criticizing and commenting on Roesgen's reporting, which has come under heavy fire in the conservative blogosphere (and even from a former CNN reporter) for her hostile interactions with tea-partiers.
So what happens next? Here's how YouTube explains the process:
After we receive your counter-notification, we will forward it to the party who submitted the original claim of copyright infringement.... After we send out the counter-notification, the claimant [here, CNN] must then notify us within 10 days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material on YouTube. If we receive such notification we will be unable to restore the material. If we do not receive such notification, we may reinstate the material.
In my experience, YouTube does indeed re-post videos 10 business days after receiving a counternotice, unless the copyright owner initiates a lawsuit.
So, CNN could sue Founding Bloggers for copyright infringement -- but I consider that unlikely. CNN's lawyers know the law of fair use, and that they would be unlikely to prevail in an infringement suit against Founding Bloggers. And remember: CNN -- like all TV news organizations -- relies heavily on fair use every day, using clips from competitors, and even YouTube, in its own broadcasts. So even a "victory" over Founding Bloggers would result in long-term damage to CNN's own interests.
Founding Bloggers could also sue CNN. Section 512(f) of the DMCA allows the target of a takedown notice to seek damages, including costs and attorneys’ fees, against the sender for "knowingly materially misrepresent[ing] ... that material or activity is infringing." While such cases are difficult to win, one court has held that the sender must take into account fair use when deciding whether to issue a takedown notice. Founding Bloggers can also sue for a declaratory judgment, asking a court to issue an order stating that its video is a non-infringing fair use.
As a practical matter, it may not matter all that much whether Founding Bloggers' particular copy of its video is re-posted by YouTube. Urged on by Patterico, numerous others have re-posted the same video, making it exceedingly difficult for CNN to scrub the net of the offending video. And today Founding Bloggers posted a new, longer video critical of the mainstream media's (including CNN's and MSNBC's) coverage of the Tea Parties. Founding Bloggers' new video incorporates some of the same CNN footage of Roesgen that was in the earlier, removed video -- but this time that footage was cleverly taken from an episode of Glenn Beck's show on Fox News, which (like Founding Bloggers) was making fair use of the CNN footage to criticize Roesgen's coverage (starting about 27 seconds in):
Here's Founding Bloggers' counternotice, prepared by its attorney David Adler of Adler & Franczyk in Chicago:
While this does appear to be a sufficient counternotice, I must admit I'm confused by the letter's statement that, under the Io Group v. Veoh Networks decision, "YouTube had an affirmative duty to investigate the availability of the Fair Use defense." I do not read Io Group as imposing such a duty on YouTube, but am open to hearing arguments to the contrary.
Founding Bloggers' Marcus does not seem like the type walk away quietly; he told me he's motivated by "principle," and not just the desire to get his video re-posted. If this dispute does make it to court, I wouldn't bet against him.