New Direction: Drumming Up A Dead Story

If anyone still wants to pressure YouTube/Google over this issue, next time you talk to one of their representatives, mention this article:

FOXNews.com - Jason Beghe: Scientology a 'Con' - Celebrity Gossip | Entertainment News | Arts And Entertainment

Note that the Jason Beghe story is at the top of the column, and that it is apparently a continuing story. Note that links to Vimeo appear twice in the article. Then mention that, if YouTube hadn't been dicks about the whole situation and reinstated Mark's account, those two Vimeo links would have been YouTube links. Ask them how much traffic they think they just sacrificed by that decision.

Originally Posted by SamuelAdams

IANAL (so a real one would have to review my perspective on this). This is my view:

* Mark Bunker DID introduce those clips on his blog.

* Both of those video clips are being viewed by Youtube & Viacom as the complete work of Mark Bunker on those issues, but this if false. Those videos were part of a multi-media blog commentary on those issues. Mark Bunker's complete work can be viewed here:

Will Smith: Scientologist? THE WOG BLOG from XENU TV
The Book of Stephen THE WOG BLOG from XENU TV

* Both blog postings included critic on the performance of the Colbert show and analysis & commentary on the societal implications of those video clip quotations.

* I have searched here:
The Colbert Report Official Site | Comedy Central
and cannot find commercially available alternatives to those small video clip quotations.

* The video clip quotations were not the full show. One was about 1 minute & 50 seconds. The other, I believe was less than 50 seconds. These were small video clip quotations that were specifically relevant to the subject matter at hand.

*Given the above, while Mark Bunker can't lay claim to authorship of those specific video clip quotations (he did properly attribute who created those works), I believe his use of those video clip quotes falls under fair use.

I wonder what the EFF would think about this issue.

This is just discussion (STAY ON TARGET -> Scientology)

Hopefully this clears this up:

Mark Bunker <xenutv@hotmail.com>
Victoire Flamel <vicflamel@gmail.com>,
Tue, Apr 22, 2008 at 12:22 AM

Nope, they were just short clips of Colbert.

(I asked him if he introduced the clips at all. I'm not sure that introducing them on his blog counts. I think he would have to have been part of the program)

Originally Posted by alolnymous

Read the caselaw. Read the DMCA. The size of the clip used is everything. You're comparing apples to oranges.

What you arguing with me about was my response to what emphasized in bold. It's not a problem with disproportion. Just because Mark had other great videos, doesn't mean he could use those. Thanks.

Originally Posted by alolnymous

.
1. You do not understand the "fair use" clause. The theme of his youtube channel is true scientology awareness and its current impact on society.
Showing a 3-minute clip from a television show that has produced thousands of hours of video material, is hardly disproportionate. Using the clip was not malicious and was undoubtedly appropriate in following the messages, writings, feelings, opinions, analysis, and journals also included on the Xenutv YouTube account.

This is important: Did Mark bunker put any comments in the sidebar of the video? Did he put an original title on the video when he named it? How about the tags he used? These may be small transformations, but they do transform the work.

It is not at all clear cut that this is not Fair Use. Fair Use is based on a four-factor test. Length of the video used is one factor. How transformative it is may be part of another factor. In any case, Youtube is the wrong target to convince on Fair Use Grounds.

Google's corporate motto is "Don't be evil" Youtube's corporate motto ought to be "Fuck Fair Use". Even if this were an open and shut case on Fair Use, YT wouldn't care.

However Viacom may be more open to convincing that this was Fair Use.

BTW, take a look at this Video:

YouTube - Super Bowl Highlights

(Double click the video to see it in context at Youtube.) See how minimally transformative it is. Yet, it was posted by Wendy Seltzer, a former lawyer for the EFF and the founder of the Chilling Effects Clearinghouse.. She was the one who posted the video. The NFL sent Youtube a takedown notice and she sent a counternotice, arguing her use was Fair Use. The NFL let the matter drop and her video was restored.

I wrote a pretty detailed analysis of the Seltzer case here.

And a more detailed description of the Four primary factors used in Fair Use analysis can be found here.

I'll be honest, I don't understand the Fair Use thing AT ALL and I'm not going to pretend to anymore. :( It's so murky... Everyone here has some pretty good ideas about how to go around it, I'm just not sure how to apply those ideas. I'm receptive to further discussion. I found a thing from Stanford on the subject:

Stanford Copyright & Fair Use - Fair Use