The gossip blogger sent DMCA takedown notices for a YouTube video because it shows three seconds from his video blog. But does the ad constitute fair use?
By the time YouTube removed an ad from the National Organization for Marriage (NOM) due to a DMCA takedown request, the video had already received thousands of views. The takedown notice had been sent to the video sharing site from representatives of Mario Armando Lavandeira — who blogs under the pseudonym Perez Hilton — and claimed that because the ad features about three seconds of footage from Perez’s video blog, it violates his copyright. Representatives also sent a cease and desist order on Friday to NOM demanding that the organization — well known for its opposition to legalizing gay marriage — stop playing the ad in television markets.
The ad in question — which lasts about a minute — features comments from Miss California Carrie Prejean in which she states that marriage “should be between a man and a woman,” a comment directly followed with a clip of Perez calling her a “dumb bitch.” (an email requesting comment from Perez for this article was not returned). The ad ends by accusing proponents of same sex marriage of trying to “silence opposition” rather than debating the issue.
Today I spoke to Brian Brown, executive director of NOM, and he labeled the takedown request and cease and desist demands “completely bogus” and said that his organization plans to fight back against them.
“I don’t know people’s motivations, but it seems pretty clear that Perez is embarassed about the fact of what he said,” Brown told me. “There’s no other reason of why he would try to take it down, because clearly he’s going to lose under well established fair use rules. It’s clearly fair use. I don’t know any lawyer who would look at this with a fair mind who would say otherwise.”
The organization’s lawyers have already sent both a letter to YouTube asking it to reinstall the video and a reply (PDF) to Perez rejecting his copyright claim. But though it’s still not clear whether YouTube will comply with the request, at least one conservative blogger has defiantly uploaded the ad onto his own YouTube account and said he’d fight any copyright claims if Perez’s lawyers came after him.
“Ultimately we just filed the response and I think [the video] will continue to be up,” Brown said to me. “I think that it’s really laughable. [Perez] is the one who went after Carrie. He went after Miss California, he put it up on a public blog. If he didn’t want people to see it, then why did he do it? And now I think he realizes that people don’t like the fact that Miss California speaks her mind and has to be the subject of attack by Perez Hilton. And it doesn’t look good for him. So clearly it’s not that hard to figure out. He doesn’t want it up because he’s embarrassed by it.”
I asked Brown whether he’d heard that bloggers were protesting by uploading the video on their own. He said that he had seen that and he was glad that they were doing so, but that he was still frustrated by YouTube removing the video because it means they would have to redirect all the links on the NOM website, which can be an inefficient process. Though he placed most of the blame on Perez for sending the DMCA takedown, he said he’s at least a little bit frustrated by YouTube’s unwillingness to substantiate claims from copyright holders and evaluate whether a clip constitutes fair use.
But Ben Sheffner, a copyright attorney who has been covering this issue on his blog, says that it’s not that simple. And he should know — he previously worked for 20th Century Fox, where a significant part of his job was sending DMCA takedown notices to video sites like YouTube. He also served as special counsel on John McCain’s 2008 presidential campaign, where he had to respond to DMCA takedowns sent by news organizations like Fox News, which claimed that McCain couldn’t use its footage in his campaign ads.
“I would say this,” Sheffner said in a phone interview. “Virtually all of the blame for the bogus takedown notice goes to the sender of the bogus takedown, meaning the copyright owner — Perez Hilton in this instance. There is an argument to be made that the host — meaning YouTube or whomever it is — should evaluate the notice and see whether an issue is really fair use before it’s taken down. But if they don’t do that, I’m sympathetic to their reason, and they have several reasons.
“One of them is they get so many takedown notices that they don’t have the resources to do an analysis on each one. And for a company like YouTube, I’m very sympathetic of that. They have hundreds of thousands of takedown notices every year. It would be extremely difficult. But as long as they get an facially valid takedown notice, meaning it sort of includes the required information, they’ll take it down automatically.”
The other reason, he said, was that the way that the DMCA was written is that a host site is only protected from lawsuit if it complies with the takedown expeditiously. This means that the site does not have the time to evaluate the thousands of takedowns submitted every year and yet still protect itself from lawsuits.
As of this writing, the original NOM ad is still removed from YouTube, so it remains to be seen whether the Google-owned company will reinstate it. But this case will likely be closely followed by copyright activists who are wary of media personalities who use copyright claims to silence legitimate criticism.
“It’s a very disturbing development,” Sheffner said. “I consider myself someone to be a strong supporter of copyright and I don’t take a particularly broad view of fair use compared to some people, but the uses that we’re talking about here — it is very clearly fair use. It’s fully non-commercial, it’s political, it’s extremely short, and it really doesn’t do harm for Hilton’s video blog. If people are less likely to support Hilton and his positions after watching the National Organization for Marriage ad, that’s too bad, the law does not recognize that as a sort of harm that copyright is meant to protect.”