Viacom has slapped an American political candidate for posting his own video to YouTube. With its latest YouTube crackdown, the media behemoth seems to be sending a new message to internet video-sharers across the globe: "You can't mess with our copyrighted content. But we can mess with yours."
Last year, as he ran for a spot on the board of education in Rockingham County, North Carolina, Star Wars fanatic Christopher Knight put together a television ad in which he vows to protect local kiddies from the Death Star. At one point, we see the iconic uber-weapon destroying a little red school house - though this could be a metaphor for federal legislation and government bureaucracy threatening the future of North Carolina education.
"I believe in more local control over our schools," Knight says, waving a light sabre. "Let's work together to defend a bright and shining future for the children of Rockingham County."
When the ad aired, viewers bombarded the local TV station with calls - "the phone lines lit up like a Christmas tree," Knight told us - and the net-savvy candidate soon posted his one-minute video to YouTube, hoping to reach an even wider audience.
Then the video was nabbed by Viacom.
Several months after its appearance on YouTube, the video turned up on Web Junk 2.0, a cable TV show from Viacom station VH1. "I'd actually feel safe with a guy like Chris on the school board," says the show's host, as Knight's video appears in the background. "You know he won't be banging the teachers."
VH1 ran the ad without Knight's permission, but he was happy it ran nonetheless. "I'm delighted that as a proud son of Rockingham County, I got worldwide exposure for this," he said. "How often does a local school board ad wind up on VH1?" He was so happy, he quickly made a copy of his Web Junk appearance and threw that onto YouTube.
Of course, it didn't stay on YouTube for long. Viacom ordered the Google-owned video-sharer to remove the clip, claiming Knight was violating its copyright. In an email, YouTube told Knight that if he continued to violate copyrights, his account would be destroyed.
"Viacom says that I can't use their clip showing my commercial, claiming copy infringement?" he said. "As we say in the South, that's ass-backwards."
Falwell and Hustler
Knight is adamant that if the Viacomers can use his clip, he can use theirs. "If this isn't a case of fair use, I don't know what is," he said. "I'm not using this for profit, and I didn't post the whole show, just a clip. Plus, I'm the originator of most of the content."
We surveyed several lawyers about this byzantine test of American copyright law, and there's no clear answer to the question "Who's right and who's wrong?" Most agree that VH1 is free to run Knight's clip. Knight is a political personality - sort of - and Web Junk is clearly making fun of him, just like Hustler made fun of Jerry Falwell.
"Speech about government and politics is one of the most highly protected areas of the first amendment," says Jonathan Handel, an IP lawyer with the California firm Troy & Gould. "And mockery and parody are very well protected."
But legal minds disagree about whether Knight is indeed infringing on VH1's copyright. Handel argues that Knight's post of the VH1 clip is indeed fair use, because it's such a short clip - and because it's mostly Knight's content anyway.
On the other hand, Todd Bonder - a new media expert with the international law firm Rosenfeld, Meyer, and Susman - sides with Viacom. "VH1's position is a highly legalistic position, but it's probably correct," he told us. "Sometimes, the law is an ass, and this is probably one of those instances." The problem, Bonder claims, is that unlike VH1, Knight isn't commenting on the clip he snagged. If he supplied comment, he'd be OK.
Quid Pro Quo
The idea isn't a new one. Yesterday, Knight mused about Viacom on his blog, and more than one reader has suggested a little quid pro quo. "Many have said that I should take the VH1 clip, superimpose myself on top of it, and offer commentary," he said.
But Jedi Knight won't do it. He's prepared to battle the Death Star, but he refuses to battle Viacom, the company responsible for a looming $1bn copyright infringement lawsuit against YouTube itself.
Meanwhile, a third Reg-friendly lawyer makes another good point. According to Carole Handler, vice chair of the IP litigation practice at the international firm Foley & Lardner, Christopher Knight may have violated the copyrights of a man named George Lucas. ®