The restoration of Founding Bloggers' video -- along with 3,000 comments -- comes a full 34 days after CNN sent its notice, and 28 days after Founding Bloggers disputed CNN's claim by submitting a DMCA counternotice. In the meantime, numerous others, led by Patterico, had re-posted the video, thwarting CNN's attempt to silence criticism of its Tea Party coverage. CNN could have sued Founding Bloggers to block re-posting, but -- wisely -- declined.
So is this incident over? Not necessarily. As I've previously explained:
Even after the re-posting, the target of a DMCA notice can sue the sender of a bogus takedown notice under 17 U.S.C. § 512(f), which provides a cause of action for "knowingly materially misrepresent[ing] under this section...that material or activity is infringing." (This is what happened in Lenz v. Universal.) In theory, CNN could also still sue Founding Bloggers for copyright infringement. But I consider that highly unlikely, for at least three reasons: 1) CNN would almost certainly lose, given the strength of Founding Bloggers' fair use defense; 2) even if CNN won, such a "victory" would actually harm its interests as a news organization that makes fair use of others' video countless times every day; and 3) by failing to go after the numerous others who have re-posted the same video, CNN has signaled that it wants this all to just go away -- quietly. The question remains: will Founding Bloggers let them?In its post announcing the video's restoration, Founding Bloggers says, "The only questions left are…what now? What comes next?" We'll be watching...
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You have taken a very analytical approach to this controversy. But the question beyond "We'll be watching" is: should Founding Bloggers sue CNN to create a precedent? As you've explained, they have a compelling case. If they choose to sue, it could shape internet political discourse for a generation and free bloggers to comment without fear of large media bullying. Do you encourage them to commit the resources to take a stand for free expression?
ReplyDeleteI really don't feel it's my place to tell FB whether they *should* sue. Being involved in a lawsuit can be a major hassle, and it would be a bit presumptuous of me to tell them they should take on that burden.
ReplyDeleteThat said, I believe FB's video is a clear example of fair use. Having a court say so would be a powerful deterrent to other copyright owners who may think they can suppress political speech by sending a DMCA notice without regard to whether the target is really infringing.
I doubt that a lawsuit would be successful. Everyone involved in this case was a private party; there's no public entity that needs to be compelled into a higher standard of behavior. And, while a great deal of outside pressure was clearly involved, you can't argue that YouTube _didn't_ follow its own stated rules.
ReplyDeleteIndeed, by putting forth a lawsuit, you'd effectively be saying that every time YouTube re-posts something that was DMCA'ed, YT is declaring that the DMCA complainant is now vulnerable to a lawsuit! I could see YT becoming even less likely to repost material reported as infringing, simply to avoid getting involved in legal actions.
@DensityDuck. If they did start a 512(f) lawusuit, YouTube wouldn't be the defendant. CNN would be. YouTube may be subpoenaed to provide evidence, but I don't see why this should be an excuse for them to ignore the DMCA put-back requirement.
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