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Google vs. Paul W. Tenny


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I found a funny clip from a Colbert Report segment a couple of days ago, and thought I'd share it with the world via Google Video. I uploaded it, it went live, and 16 hours ago it came down due to a policy violation (re: copyright, I assume.) Copyright law is a hobby of mine, ever since I heard the story of a company that collected a great deal of user-made Quake 1 maps and sold them on CD without reimbursing the map authors. I found the entire situation interesting, and just kept learning more and more as time went on. So naturally, I know my rights within the law far better than most people do, and I know I am well within those rights to publicly post this video clip. Here is the current e-mail exchange between Google and myself.

From: video-support@google.com <video-support@google.com>
Reply-To: video-support@google.com
To: the little guy
Bcc: video-support@google.com
Date: Jun 20, 2006 2:08 PM
Subject: Your video has been rejected

Hi,

Your video "Colbert_Westmoreland" was rejected because it didn't comply
with our Program Policies.

Videos submitted to our program are subject to an initial review to
ensure that they comply with our guidelines. When videos do not meet
our standards, we disapprove them. You can review our guidelines at:

http://video.google.com/support/bin/answer.py?answer=27737&topic=1490.

Please make sure that you have all legal rights to use the content you
wish to submit to Google. For more information about intellectual
property rights and the program, please visit
http://video.google.com/support/bin/topic.py?topic=1490

Thank you for your cooperation.

Sincerely,

The Google Video Team


..and my response..


From: the little guy
To: video-support@google.com
Date: Jun 21, 2006 6:53 AM
Subject: Re: Your video has been rejected

Google Video Support,

In reality, my video clip complied with your program policies in every way, as well as the law itself which supersedes your policies. I can only assume, given your total lack of specificity, that you are insinuating that my video clip was a copyright violation of some sort. I refer you to the following from the United States Copyright Office at http://www.copyright.gov/fls/fl102.html

One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright act (title 17, U.S. Code). One of the more important limitations is the doctrine of "fair use." Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
My video clip substantially passes this test; its use is not of a commercial nature. (Notice the or that makes this a two part either or test)

3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
My video clip substantially passes this test; the portion used is a tiny fraction of the whole work.

4. the effect of the use upon the potential market for or value of the copyrighted work.
My video clip substantially passes this test; the effect upon the potential market for or value of the clip is negligible at best, and only barely positive for the owner at worst. It has been generally recognized by the courts that not all of these tests must be passed, and that passing any of these three may be grounds for passing "fair use". My video clip passes all three that I have listed, and therefore is legal and of "fair use". I will now address the other points in your equally vague policy.

illegal content
My video clip is legal under the "fair use" clause, 17 U.S.C. 107, as well as all other applicable laws in the United States, and therefor is not illegal.

invasions of personal privacy
My video clip is not a personal invasion of privacy, it is a completely legal reproduction of a minor part of a copyrighted work.

pornography or obscenity
There is neither of these things in my video clip.

hate or incitement of violence
I don't really think I even need to address that; it's Stephen Colbert and United States Representative Lynn Westmoreland, whom I am certain would be happy to explain to you the law regarding "fair use" in this matter.

graphic violence or other acts resulting in serious injury or death
Irrelevant.

inaccurate or irrelevant metadata (spam)
I did in fact properly attribute the video clip to Comedy Central, which only serves to fully reinforce my rights under the law to use the clip under "fair use".

violations of copyright. Please see our Copyright Policy for more information.
Please read the entire message above again, because I am well within the rights granted to me under the law. I would like to remind you that Google has been exercising this right to build it's book search engine, even over the express objections (and lawsuits) of the authors whose copyrights they believe you as a company are violating. I am not one to miss the irony of it all.

Because your policy states specifically that a clip may be rejected for "violations of copyright", you may at your leisure restore my video clip given that I have explained in detail how my clip exists legally and may be reproduced within well the stated exceptions in copyright law.

In order to be exceptionally thorough, I refer you to your own policy page at http://video.google.com/support/bin/answer.py?answer=26617&topic=8707 which states that "Both copyright law in your country and the Upload Program Terms and Conditions prohibit distributing copyrighted works, unless you have the legal right to do so." I have the legal right to distribute this copyrighted work under 17 U.S.C. 107. By your own policy, I have the right to upload and share this video.

Please restore it as soon as possible, and thank you for your time in fixing this matter.

Sincerely,
Paul William Tenny


Naturally I fully expect another canned response, if I get any at all, saying that I'm wrong and I am not getting my vid back up. If this is the case, I will happily find a flash video player like the ones Google Video and You Tube use (maybe You Tube wants it?) and I'll host the damn thing on my Google Pages site. Either way, I'm going to win; I know the law and I know my god damned rights in this country. And by the way, I'm more than just a little offended at being lectured to over the law by a company that's a collaborator with Communist China in the fight against democracy. Do no evil, Google? You are sleeping with the evil to make a buck. What a joke.

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Jun 22, 2006, 1:41:00 AM
Yes, you were clearly lectured.


Jun 23, 2006, 3:02:00 PM
The point of this comment is?


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The text of this article is Copyright © 2006,2007 Paul William Tenny. All rights reserved. This work is licensed under a Creative Commons Attribution-Share Alike 3.0 United States License. Attribution by: full name and original URL. Comments are copyrighted by their authors and are not subject to the Creative Commons license of the article itself.