Lionsgate commits copyfraud, has classic "Buffy vs Edward" video censored

Update: It's back up. McIntosh's YouTube comments says, "Three weeks after a bogus DMCA takedown by Lionsgate, I received a one line email from the YouTube team saying that my remix has been reinstated."

Jonathan McIntosh's "Buffy vs Edward" video is a classic: a mashup that's been viewed millions of times on YouTube, discussed in the halls of the US Copyright Office, and cited in a Library of Congress/Copyright Office report as an example of legal, fair use mashup.

But when Lionsgate bought out Summit Entertainment, the company that made the Twilight franchise, they started to aggressively "monetize" the remixes of the series online. That meant that they claimed ownership of them using YouTube's ContentID system, which would automatically place ads alongside all the video clips from the series -- including "Buffy vs Edward."

McIntosh objected to this. His video was fair use -- the Copyright Office itself said so -- and had never had ads placed in it. Lionsgate had no claim over it. He appealed to YouTube. YouTube punted to Lionsgate, who insisted that they were legally in the right. McIntosh hired a lawyer to write an letter explaining the fair use analysis to YouTube, who agreed, and reinstated the video, and Lionsgate (seemingly) dropped the claim.

But Lionsgate came back with another claim: the "audiovisual" elements in the video were fair use, but the "visual" elements were not (yeah, I know). McIntosh went through the process again, with the same result -- and so Lionsgate filed a complaint with YouTube that resulted in it being taken offline altogether.

McIntosh's correspondence with Lionsgate has been very unsatisfying. The company claims that since he refused to let them make money off of his creativity, they had "no choice" but to have it censored from YouTube. The company's representatives refuse to address the fair use claims at all.

Meanwhile, to add insult to injury, McIntosh had to complete an insulting "copyright education" course in order to continue using YouTube (even though he is an expert on fair use and had done no wrong), and is permanently barred from uploading videos longer than 15 minutes to the service -- all because of the repeated, fraudulent assertions made by Lionsgate.

In the past, companies that sent similar fraudulent takedowns to YouTube have faced penalties (remember EFF and the dancing baby versus Prince and Universal Music?). It would be an expensive and difficult proposition for McIntosh to bring Lionsgate to court for repeating the fraud, but let's hope that these copyfraudsters don't get off scot-free.

In the meantime, here's a really cool version of the video with annotations courtesy of Mozilla's popcorn.js tool.

Buffy vs Edward Remix Unfairly Removed by Lionsgate

I write books. My latest is a YA science fiction novel called Homeland (it's the sequel to Little Brother). More books: Rapture of the Nerds (a novel, with Charlie Stross); With a Little Help (short stories); and The Great Big Beautiful Tomorrow (novella and nonfic). I speak all over the place and I tweet and tumble, too.

MORE: Copyfight • copyfraud • fanac • law • ripoff • videos • web theory • youtube

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stasike

There is update in the original article.
The Youtube video has been reinstated and the 15 minutes penalty has been lifted.
I wonder if Lionsgate was penalized somehow by Youtube, now that is is known that they DO abuse copyright.
- http://mordicai.livejournal.com Mordicai
  
  Do you really wonder though? ’cause I am going to bet…no.
- http://twitter.com/governorsalad Governor Salad
  
  I cannot imagine Lionsgate being penalized by YouTube. Massive corporate enterprises tend to stick together in the end.
  - ocker3
    
    Except for the billions of views and many videos removed from YT because of fake like and view campaigns by the corporate uploaders.
- Florian Bösch
  
  Yeah that’s great… for HIM. What about the tens or hundreds of thousands of people who get screwed over and have no recourse such as supernice BoingBoing etc.?
http://twitter.com/EssBen Ben Rosenthal

What evil rat bastard did this? Why would you combine two of the dullest franchises ever to grace a screen? May as well mash up paint drying with flies buzzing around a light shade!

glad I’m not the only one who finds the copyright school bullshit insulting though. Especially considering the fact that copyright infringement put the site into the top spot that it currently enjoys today!

Fuck ‘em, right in the ear!
- Snig
  
  No, no, you’re mistaken. Buffy good, Twighlight bad. You don’t have to rewatch Twilight, but you should rewatch the first five seasons of Buffy a couple times until you realize your mistake. Yes, right now. We’ll wait.
- http://www.nathanhornby.com/ Nathan Hornby
  
  Not liking Buffy is like not liking Scream. You either haven’t watched it, or didn’t get it.
  - Fnordius
    
    Now now, don’t be dissin’ on me like that! Saying I don’t like Buffy because haven’t watched it, or didn’t get it” is just, well, wrong. Buffy (and Scream, for that matter) are like horseradish to me: I know and respect that others enjoy it, but it just ain’t my taste.
    - http://www.nathanhornby.com/ Nathan Hornby
      
      You didn’t get it then
      
      ;)
      - Fnordius
        
        So, because it’s not my taste means I don’t get it? Oh dear.
        
        Look, not every geek likes horror. Just like not everyone likes horseradish. Get over it. :P
      - http://www.nathanhornby.com/ Nathan Hornby
        
        I’m just messing – my point was merely that those are two often misunderstood pieces of media.
        Unlike Twilight, which is a masterbotory aid for teenage girls.
      - http://www.nathanhornby.com/ Nathan Hornby
        
        Incidentally, although I was taking the piss a bit – you kind of accidentally touched on my point.
        
        Scream isn’t so much a horror as a parody of a horror – Buffy, likewise, if not a bonafide parody as a lot of parody elements. That’s what I was getting at when by people not getting it. Regardless, of course, people are still perfectly entitled to not enjoy either :)
      - oasisob1
        
        Anyone who doesn’t like horseradish either hasn’t tried it, or just doesn’t get it.
      - AnthonyC
        
        I… never thought of Buffy as horror. Interesting.
      - Antinous / Moderator
        
        So you made an announcement about how you Do Not Like something (which is always fascinating to everyone) and now everyone else needs to get over it?
      - http://twitter.com/kramski Kramski
        
        Straight guys and lesbians don’t bone dudes, because they just don’t get it. They’re just too stupid to see why it’s great.
        
        ;)
      - http://www.nathanhornby.com/ Nathan Hornby
        
        Precisely!
      - Fnordius
        
        In reply to your reply to me, I thank you. I kinda figured you might be taking the piss, but deadpan humour does not carry well into UTF-8.
        
        (insert smiley indicating amusement here)
        
        Cheers!
      - http://www.nathanhornby.com/ Nathan Hornby
        
        “deadpan humour does not carry well into UTF-8″
        
        90% of the things I type on a keyboard carry completely the wrong tone. It’s a curse of our times.
      - http://lemoutan.blogspot.com/ Lemoutan
        
        We need a Deadpan Font
    - Andrew Singleton
      
      I think everyone in this thread needs to settle down. S’like my family not liking bladerunner or zombieland. They don’t like it? Fine great room for all sorts of viewpoints. It only gets into ‘wrong’ territory when they get insulting about whati enjoy.
      
      That or i seriously need to readjust the sarcasm filters.
http://www.nathanhornby.com/ Nathan Hornby

I’m in a position where I’m going to have to start blaming YouTube for this.

If they were having to remove videos because of some crazy Sharia law, because they were based in the Middle East – they’d move.

They’re in a country with batshit crazy copyright laws – they should move.
- Andrew Singleton
  
  To where? What country isn’t either behelden to batshit crazy copyright law or can’t get strongarmed by those that do?
  - http://www.nathanhornby.com/ Nathan Hornby
    
    Plenty of places – anywhere without DMCA is a good start.
    
    Copyright isn’t the problem, the application of it is.
    - oasisob1
      
      The problem here is that the studios and youtube circumvent the DMCA with the contentID bs. The studios aren’t actually making DMCA claims (in most cases), so they can’t be punished. The studios are working within a system that youtube made, which favors studios, and fucks over uploaders. I think I’ve got that right?
      Also, if you don’t like Buffy, horseradish or Bladerunner, then you haven’t tried them or you just don’t get them. ;-)
      - http://www.nathanhornby.com/ Nathan Hornby
        
        You may well be on to something there.
        
        The reason it’s not being fixed though is because of YouTube – however you look at it they’ve become the rightful point of blame. The laws may be the root cause, but bought laws aren’t easy to change.
        
        I was avoiding the horseradish reference because although lying would be easy – I hate horseradish :(
      - Antinous / Moderator
        
        Hating horseradish might have a genetic component, in which case it would be correct to say that you just don’t get it.
      - http://www.nathanhornby.com/ Nathan Hornby
        
        Well ill be damned
- Fnordius
  
  I think you might be on something here, as Vimeo has YouTube to thank for its rise in popularity.
  
  On a side note, if patent and copyright laws and things like that keep going like they are, we might see competition amongst nations to provide safe havens for tech startups. US law slamming you for a software patent? Resettle to Brazil. German GEMA complaining that the artist royalties are owed? Pull your servers from Germany and resettle to Switzerland.
  
  I’m actually kind of surprised that this doesn’t come up more often, as companies would then pay taxes where they relocated to.
  
  Enough side note rambling. For now.
http://profile.yahoo.com/NHKSXYNFCEYZT5CXDMFOHAEJ4A adam

Universal did not get penalized in the dancing baby case. The only thing that happened in 2008 was that the judge said that considerations of fair use were required prior to sending a takedown notice. The case is still before the court. Most recent development is that Judge Fogel said he’s not willing to decide good-faith/knowing misrepresentation without sending it to the fact-finder. http://arstechnica.com/tech-policy/2012/10/after-five-years-dancing-baby-youtube-takedown-lawsuit-nears-a-climax/

There were damages assessed however in a previous case: Online Policy Group v. Diebold, 337 F. Supp. 2d 1195 (N.D. Cal. 2004)
howaboutthisdangit

At the very least, YouTube should force all Lionsgate lawyers and executives to complete that copyright education course.

There should also be some sort of banhammer for repeat DMCA abusers.
- That_Anonymous_Coward
  
  They gave it lipservice in writing the law, but corporations don’t suffer any penalties for swearing under the penalty of perjury because they just need a good faith belief.
  It would be awesome if a court ruled a good faith belief is not enough, and these corporations would be paying huge fines daily for all of the bogus DMCA things they send out every day.
  - http://www.nathanhornby.com/ Nathan Hornby
    
    Surely this isn’t good faith though? They were quite clearly playing the DMCA game – if a lawyer doesn’t know about fair use that’s not ‘good faith’, that’s incompetence.
  - http://profile.yahoo.com/NHKSXYNFCEYZT5CXDMFOHAEJ4A adam
    
    A court cannot rule that good faith is not enough. It is in the statute, and courts are bound to apply the law. see 17 U.S.C. §512(c)(3)(A)(v).
    The question arrises though: what is “good faith?” Courts have diverged on whether subjective belief is sufficient, or a stricter objectively reasonable belief standard is required. Also, there is no provision for fines, but rather, only actual damages (including costs and fees though). see 17 U.S.C. §512(f).
- http://www.nathanhornby.com/ Nathan Hornby
  
  That’s the problem with DMCA, you can’t start ignoring it, because that’d put YouTube in a very shaky legal situation. They should just prosecute instead, as the this clearly wasn’t in ‘good faith’ and there are provisions in place for exactly this reason.
  
  Someone just needs to grow some balls.
- Don
  
  So, crowdsource a legal team that sues Lionsgate lawyers and their ilk? I don’t imagine EFF has time to take all these cases.
  - Andrew Singleton
    
    Come up with a reasonable set of kickstarter rewards and I’ll see what i can do. :)
http://twitter.com/rvitelli Romeo Vitelli

Haven’t seen the video since I refuse to watch it unless I am positive that Edward gets staked.
- That_Anonymous_Coward
  
  That would be in the gay porn parody…. and I don;t think it means the same thing in that context…
- Willis Monroe
  
  Spoiler: He does.
- Snig
  
  Spoiler, but you should watch it.
  - http://twitter.com/rvitelli Romeo Vitelli
    
    Finally saw it. Bella couldn’t have done that at the end of the first Twilight movie and spared us all those wretched sequels?
littlebrother

Could some make a mashup of vampires and this? http://www.youtube.com/watch?v=MpraJYnbVtE
bkad

I want to thank BoingBoing for posting things like this. Whatever news sites I am reading, they are apparently not the ones that cover things like this, so I really rely on you guys to keep me up to date on pop and Internet culture. The copyright discussion is interesting too, but I don’t know how to fix that problem.
Tarliman

What if everyone were to refuse to pay for anything Lionsgate produced for thirty days? Or boycott the opening weekends of their movies, and go see them later? Movies are judged as success or failure based on the opening weekend accounting, so if you screw the opening weekend, the studio goes down in flames.
Damien DeBarra

How about crowdfunding the cash for Jonathan McIntosh to get Lionsgate to court?
sarvin

Clearly the government needs to step in with some sort of video-ban. I’m ok with people making and watching videos of Buffy but not Twilight.
SuperMatt

It occurs to me that part of the problem is the Youtube terms of service. Don’t we run into similar things on twitter or facebook? When we allow a large company to own all of our content, we will be subject to their whims.
dhmspector

How is is that repeated willful misuse of the DCMA does not result in criminal charges against these media companies? Try doing that as a regular citizen and see what happens.

It seems to me the only way to deal with the is to make it too painful for the individual lawyers, and where possible their firms to participate. File complaints with the state bar associations both against the individuals and their firms. Knowingly participating in an illegal act (e.g., filing false DMCA takedown notices for works you have no legal claim to, or misusing the law to harass, intimidate or threaten) is a death sentence for a lawyers who are, in fact, officers of the court.
http://newnumber6.livejournal.com Peter

The company claims that since he refused to let them make money off of his creativity, they had “no choice” but to have it censored from YouTube.

I seem to recall somebody recently writing an article about just this sort of philosophy and the problems with it.
austinhamman

“the ‘audiovisual’ elements in the video were fair use, but the ‘visual’ elements were not” that actually hurt my brain every time i think about it, it’s like a robot in a scifi show being given a paradox and exploding, that’s how my head feels now. i just have to keep saying ‘don’t think about it,don’t think about it,don’t think about it’
this is worse than loki’s wager, i….gaaah
artnmr

Hi, this is Art Neill from New Media Rights, the organization that helped Jonathan fight the takedown. We’ve been doing this work for 5 years on a shoe-string budget. We help folks directly, one-to-one.

We have 2 attorneys right now (who wear all the hats), but we have enough inquiries and
work for a much larger staff.

If you and others are interested in supporting this kind of work, consider supporting us. We are scrambling to find foundation/donor partners to make sure our services exist past April.

If someone has a question they can email us at support@newmediarights.org

Website:

http://www.newmediarights.org

Secure donation form.

http://www.kintera.org/autogen/home/default.asp?ievent=1034481
adonai

Huh, I’d actually downloaded this from Youtube a few weeks back to show someone who didn’t have net access. At least I’ll be able to mirror it when Lionsgate inevitably send a takedown again.
benher

I hate that dopey smarmy “Meh” face that youTube sticks up.
Are they trying to convince their users that somehow they are some sort of hapless victim / innocent party? It mocks us all, the Meh-face!Sorry if it’s a bit off topic, but I had to post this somewhere on the Internet before I die.