Vampires and vampire slayers, specifically Edward and Buffy,
can be found at the center of a fair use fight that encapsulates so much of
what is wrong with the DMCA takedown process.
Three years ago, blogger and “pop culture hacker” Jonathan
McIntosh uploaded to YouTube his mash-up video Edward v. Buffy, a
social commentary that excerpts clips from both Twilight and Buffy the Vampire
Slayer. Because his video uses clips to
create a completely new work that stands on its own, it is protected by
copyright and is legally “fair use”.
At least that’s what McIntosh thought until this fall when
Lionsgate Entertainment issued a series of aggressive takedown notices, pulling
his popular video off YouTube and sending him into a legal battle that is still
ongoing 3 months later. Read McIntosh’s highly informed blog about the process here.
McIntosh’s vampire video is a case to focus on for a few
reasons. First, his video is undisputedly protected as fair use; in fact, this
summer the US Copyright Office explicitly cited it as an example
(large pdf., quote on pg. 133) of a proper exemption from DMCA takedowns
precisely because of its status as fair use material. Second, it highlights the
leniency with which copyright law handles bogus takedown notices; Lionsgate has
repeatedly removed McIntosh’s fair use protected video apparently without fear
of legal penalty. Finally, it shows the detrimentally slow pace at which DMCA
takedowns are processed.
Lately, quite a few people have suggested that flaws in section
512 of US copyright law need improvement, including Senator Ron Wyden in a speech
at CES yesterday. Here is what Public Knowledge proposes to fix some of the
issues with the takedown process.
takedowns. Someone who intentionally issues a takedown notice for material
that isn’t actually infringing can be made to pay fees, but PK believes that
these penalties aren’t acting as strong enough deterrents for those disregarding
the law. We need to broaden the range of misrepresentations that merit
discipline. We also need to extend the penalties to actual damages, including
statutory damages that a judge can increase if the misrepresentation was
content promptly. Currently, when a host service like YouTube is asked to
restore a disputed video back to the site, they must wait 10 days before
replacing it. For time sensitive issues, particularly of political or
newsworthy nature, 10 days is too long to wait.
PK proposes that this wait time be eliminated so that content can be
For more on curbing abuses of copyright takedowns see PK’s Internet