Parody maker's copyright fight with media giants takes fair turn

Parody maker's copyright fight with media giants takes fair turn
By Sam McManis - Bee Staff Writer | Published 12:00 am PDT Tuesday, August 28, 2007

Say you are one of those tech savants with the tools and time to fashion political commentaries using video snippets from news and comedy shows to support your views. Say you take the next step and post those pieces on YouTube.

Months go by, and some of your videos are viewed and commented upon by thousands; others just get lost in the morass of video-sharing detritus. Then one day, you get an e-mail from YouTube saying Viacom has requested a takedown of all your videos because it says you violated copyright laws.

Busted! All your work is gone. Your voice silenced.

Do you slink back behind your laptop and hope that the media giant doesn't sue you? Do you create a new account under a new name and keep plugging away until you're busted again?

Not if you're Allen Asch, the Sacramento man who goes by the YouTube sobriquet "LiberalViewer." When all his work was expunged in February, he felt unfairly used in a legal tug of war between Viacom and Google, owner of YouTube.

So what to do?

He studied the "fair use" doctrine of the copyright laws and fought to get the videos reinstated. Fair use is an exception to the law that allows people to use copyrighted material for commentary, parody, news reporting and educational research.

But one man -- even if he has a law degree, as Asch does -- has neither the means nor the time to fight a major corporation over the vagaries of copyright law.

It took two lawyers from the ACLU writing several pointed letters over several months, as well as a couple of phone calls from lawyers at the Fair Use Project at Stanford Law School, to persuade Viacom and YouTube to cease and desist from its cease and desist notice and return Asch's work to the site.

Though grateful that he is allowed to continue to work clips from favorites such as "The Daily Show With Jon Stewart" and "The Colbert Report" into his videos, Asch still feels as though he's been put through the corporate wringer.

"In a way," Asch says, "I felt like (Viacom) should apologize to me."

Not that he's holding his breath for that to happen.

But Asch is speaking out to inform other bloggers and purveyors of consumer-generated media that they have just as much right to hold the fair-use banner as journalists in traditional media (newspapers, television, radio) and scholars.

"One of the good things that's come of this is that Viacom now has made a statement saying it will allow more (fair use) than before," Asch says. "It's going to err on the side of tolerance. In fact, I want to make a video about this to let people know they won't get sued."

The use of photographs, video clips and music samples on blogs and Web sites has become so popular -- and the legal blow- back by copyright owners so prevalent -- that several legal organizations have formed to aid people in determining what constitutes fair use of material.

The highest profile is Stanford's Fair Use Project, which in the past year has won several major legal victories for Internet users, academic researchers and documentary filmmakers against copyright claims.

It has helped on copyright claims from the serious to the silly. Due to the Fair Use Project's intervention, a Stanford scholar gained the right to quote from primary source documents from the estate of writer James Joyce. A video parodist was able to use Gloria Gaynor's song "I Will Survive" without having to gain permission from the song's owner, Universal Music Group.

Recently, it took on Viacom in the case of Asch and also the political organization MoveOn.org, which had had a parody video of humorist Stephen Colbert taken down from YouTube at Viacom's request.

"Viacom has proven to be fairly reasonable," says Anthony Falzone, director of the Fair Use Project. "So I wouldn't point to Viacom as the poster child of fair-use abuse -- anymore. But there are a lot of other cases out there."

Yet, even Falzone says that the Copyright Act of 1976, which put fair use on the books, can be nebulous.

"As a general matter, if you're using small snippets of copyrighted material to say something about them -- critiquing, commenting, making a parody -- then you're off to a good start. We lawyers call that 'transformative' uses -- making something new out of others' material."

Others, of course, might call that stealing.

As James DeLong, a senior fellow at the Progress and Freedom Foundation recently told National Public Radio, "Our concern is that there are elements, largely in universities, which really do not favor intellectual property and would like to see it more or less undermined and destroyed. ... Fair use, to a certain degree, should be constricted rather than expanded."

Falzone says there are some cases that come to the Fair Use Project that it won't represent because the case is weak. Example: Internet users who post videos from programs in full, without commentary.

"We realize fair use has its limits," Falzone says. "It's not a license to take copyrighted material and do whatever the heck you want with it."

What the Fair Use Project and Electronic Frontiers Foundation hope to guard against is corporations using cease-and-desist letters as cudgels to smite those who have a legitimate reason for using copyrighted material.

"A lot of cease-and-desist letters are sent out because it's cheap and easy, and has a high compliance rate," said Wendy Seltzer, former staff attorney for the Electronic Frontier Foundation, at a recent Google- sponsored Web seminar. "(There is) plenty of bullying going on."

Only now, the little guys such as Asch are fighting back.

Recently, the vlogger received another takedown notice from YouTube, this time from Pee-Wee Herman's corporation, Herman's World Inc.

It stems from a video Asch made asking whether Pixar "ripped off" Herman by fashioning its one-eyed green monster in the movie "Monsters Inc." based on a similar green one-eyed monster from "Pee-Wee's Playhouse." It used about a minute's worth of video from the erstwhile children's show.

Asch is in the process of challenging that takedown, as well. Asked why Pee-Wee Herman's people would care about a seemingly innocuous video seen by only 1,000 viewers, Asch said, "I hear he has a DVD of 'Pee-Wee's Playhouse' coming out (soon)."