Friday, May 15, 2009

Founding Bloggers' CNN critique: down an entire month; why hasn't YouTube re-posted?

This is getting ridiculous. Sixteen business days after Founding Bloggers submitted a DMCA counternotice to YouTube seeking reinstatement of a video it created to critique CNN's reporting on a Chicago "Tea Party" protest, YouTube has yet to reinstate the video. YouTube's failure to re-post is baffling, given that it faces no risk of liability, for 2 independent reasons: 1) the 10-14-business-day window counternotice window has already closed, thus permitting YouTube to re-post without losing the protection of the DMCA's safe harbor; and 2) Founding Bloggers' inclusion of 1 minute, 20 seconds of CNN footage to criticize reporter Susan Roesgen's contentious attitude toward protesters is a clear case of a non-infringing fair use.

Here's the timeline:
April 15. Chicago Tea Party protest, covered by CNN's Roesgen as well as a video producer from Founding Bloggers.

April 16. Founding Bloggers posts video to YouTube that includes CNN footage, as well as its own footage depicting Roesgen interacting with protesters.

April 17. CNN sends DMCA takedown notice to YouTube; YouTube removes video.

April 18. Popular conservative blog Patterico's Pontifications publicizes takedown; urges others to re-post same video.

April 23. Founding Bloggers submits DMCA counternotice.

May 7. 10-business-day counternotice period expires without CNN filing suit, enabling YouTube to re-post video without risk of losing DMCA safe harbor. See 17 U.S.C. § 512(g)(2)(C).
CNN's meritless takedown notice has now resulted in Founding Bloggers' video (at least the original version) being inaccessible on YouTube for an entire month. CNN's abuse of the DMCA takedown process in an attempt to silence speech with which it disagreed was mitigated here by the fact that Patterico and others re-posted multiple copies of the video, thus ensuring that it could still be viewed. But the principle is still important: no one -- least of all a news organization that ought to be championing robust political discourse -- should be permitted to misuse copyright law to suppress criticism (especially criticism of itself!). And what if Founding Bloggers was an obscure liberal site, without allies among popular bloggers who could champion its cause and make sure its message was still able to be heard? CNN's gambit might well have succeeded.

YouTube generally does re-post videos once the counternotice window closes without a lawsuit. (I've checked PACER; CNN hasn't sued.) And in at least one recent case where YouTube determined that the material subject to takedown was a fair use, it re-posted the video even before the counternotice window closed.

So, YouTube: why haven't you re-posted Founding Bloggers' video?


  1. Mr. Sheffner why are you asking?
    So, YouTube: why haven't you re-posted Founding Bloggers' video?IIRC you yourself explained on your blog that they don't have to [i.e. they are not required by law]!

  2. I don't believe that anything in the law *requires* them to re-post. However, as a matter of practice, they normally do.


Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.