Monday, March 26, 2007

ICC and YouTube

If there is one organisation more sordid and money-grubbing than the BCCI, it's the ICC. Today's news is that they are ordering YouTube to take down clips of the cricket world cup. YouTube is complying: under US law (specifically, the Digital Millennium Copyright Act) they are bound to.

The DMCA is one of the most loathed pieces of legislation in recent years. It is why I cannot legally play a legally-purchased DVD on my Linux computer in the US, and why a manufacturer cannot legally sell me a "region-free" DVD player in the US, capable of playing movies bought in Europe or Asia.

But in this case, it has a flip side. Recognising that content-hosting companies like YouTube cannot be held responsible for every piece of material users post on them, it does not hold them liable for infringement in pirated clips -- as long as they promptly honour requests to take such clips down.

But what if the clips aren't really infringing -- for example, what if they are "fair use"? In that case, the DMCA stipulates that the person who posted the clip may file a counter-notification stating that it is fair use. Then YouTube is free to put the clip back up, and any further litigation must be between the copyright owner and the user who put the clip up.

Moreover, misrepresentation by a copyright owner of the status of such content is liable for damages. Recently Viacom (the parent company of Comedy Central, MTV and others), who have sent many take-down notices and have even sued YouTube/Google, have themselves been sued under the misrepresentation provision by, over parody clips that they demanded taken down. MoveOn claims that Viacom "should have known" that these were fair use, and thus misrepresented their copyright status.

Back to the ICC case. (WARNING - I am not a lawyer and not based in the US. If you want to do anything along the following lines, consult a lawyer.) It seems to me that posting long excerpts of matches would be a copyright violation, but posting short clips (such as a single delivery) ought to be "fair use". So, if someone who posted a clip cares, they can file a counter-notification, which costs nothing unless the ICC decides to take it up. And if someone really cares, and believes that the ICC "should have known" that short clips are fair use, they can follow MoveOn's lead in suing the ICC.

I don't suppose anyone will think it's worth the trouble though. What's happening, and is likely to continue happening (as with Viacom), is that new clips are being put up faster than the old ones are being taken down. The ICC will just have to spend a lot of time sending takedown notices.

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