The Electronic Frontier Foundation (EFF) and media giant Viacom haven't always seen eye to eye in the past on the fair use of copyrighted material on the Internet, but a case currently in the courts that involves the parody of a viral video has made the pair allies.
Viacom is embroiled in a lawsuit with Brownmark Films, which owns the copyright to a nasty little video by Samwell called "What What (In the Butt)," which has garnered more than 44 million hits on YouTube. A Viacom property, South Park, created a parody of the video and aired it on Comedy Central.
Brownmark sued Viacom for copyright infringement, but a federal district court dismissed the action. It ruled that the parody was a fair use of the material and there was no need for a trial on the issue. Brownmark appealed that decision. It claims fair use should not be considered by a court when it determines if a copyright case merits a trial.
In a "friend of the court" brief filed Monday with the appeals court, the EFF sided in the case with Viacom and the lower court. If Brownmark were to prevail in the appeal, the EFF argues, it would have a "chilling effect" on free speech on the Internet and encourage frivolous lawsuits aimed at squashing the fair use of copyrighted material.
"Brownmark is asking the appeals court for a rule that would make it much more difficult to resolve easy fair uses cases quickly," explained EFF Fellow Michael Barclay. "That would discourage artists and others from fighting claims, no matter how baseless, or even engaging in the fair use in the first place."
"The judge in this case got it exactly right: When the fair use is obvious, the case should be decided right away," Barclay added.
Two district courts have already ruled that it is proper to consider fair use when dismissing copyright cases during the preliminary stages of a lawsuit, the EFF noted. Such consideration is necessary for fighting copyright trolls who depend on the threat of a trial and the high cost of litigation to settle cases they wouldn't have a prayer of winning in court.
"Fair use--using some copyrighted material for the purposes of art, education, or commentary--is an important part of how we communicate today," says EFF Staff Attorney Julie Samuels. "We see it every day in segments on The Daily Show, in political advertisements, and in 'remix' videos on YouTube."
"We can't let litigious copyright holders chill free speech by making it more expensive," Samuels added.
Historically, the EFF and Viacom have more often been at odds than allies. In 2007, the pair found themselves adversaries in a case involving SonicBlue, a company that made an early digital video recorder called ReplayTV. In that lawsuit, Viacom and other media companies tried to force SonicBlue to collect data on its customers so the firms could determine if copyright infringements were taking place.
The EFF also tangled with Viacom in a $1 billion copyright lawsuit it filed against YouTube, which the media concern lost.