Published by LawTechie - July 25, 2011 - LawTechie

Intellectual Property Lawyer NYA free press advocacy group recently posted a video to YouTube illustrating how various broadcast stations engage in “covert consolidation” by sharing anchors, reports, websites, etc… After receiving an influx of hits, the video was immediately brought down via a DMCA Take-Down Notice made by one of the broadcasters, Newport Television. The Daily Online Examiner reports:

Newport alleged that Free Press infringed copyright because its clip showed the logo of two stations controlled by the company.

The Examiner correctly points out that “this type of claim would go nowhere in court” since the above logo use is a clear fair use for newsworthy purposes (the logos were used simply to identify the subjects of the video). Of course YouTube had no choice but to take the video down since that was the only way it could ensure its immunity from liability under the DMCA. Nevertheless, Free Press wanted its video back up and threatened to sue the take-down noticer:

When Free Press received Newport’s cease-and-desist letter, the group fired off a response contesting the claim and threatening to sue the broadcasting company. The advocacy group reported today that Newport has backed down and that its video was restored by YouTube.

The key to this exchange is found in Section 512 of the DMCA which provides immunity to sites like YouTube (e.g., online video, image and data hosts) so long as they immediately comply with a Take-Down Notice made by a valid copyright holder whose work is being infringed by the site. The other edge of this sword — and highly relevant to the matter here — is Section 512(f) which provides damages, including costs and attorneys fees, against Take-Down Noticers who make misrepresentations under the DMCA.

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.


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