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.