Possibly The Most Ridiculous DMCA Take Down Yet

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If you don’t like something on the Internet, it seems that sending a DMCA notice is a nearly sure-fire way to get it taken down. We’ve seen some people fight back against fake notices, particularly the EFF. In fact, I’ve criticized the EFF in the past for being overzealous in fighting DMCA notices. But in many cases, the EFF and other groups helping people defend against bogus DMCA notices have been a huge help.

Sometimes abuse comes when people send out fake notices. Other times, blanket notices are the problem (see last link in paragraph above). But the situation today is one of the most petty I’ve seen to date.

Scorpio Music sent a letter to Yahoo (presumably a DMCA notice) that stated that a video created by Loren Feldman infringed on copyrighted material they control. The alleged infringement is over the use of the YMCA song by the Villiage People.

The video doesn’t play the song. At one point, for a couple of seconds, the puppets sang one line of it (around the 1:30 mark). Yahoo removed the video immediately (it’s still up at YouTube and is embedded above), and sent an email to Feldman threatening to terminate his account (partially copied below).

Yahoo also says that one more notice of infringement, “may result in not only the removal of all videos uploaded by you to the Yahoo! Video service, but also the termination of all your Yahoo! services as well as the deactivation of your Yahoo! ID.”

What bothers me most about this is the fact that the video, by any measure, would be considered fair use under copyright and trademark law. This isn’t a gray area.

Given how frequently bogus DMCA notices are sent out, people should be wary about uploading videos to Yahoo. Receive just two of them and you might find your Flickr, Yahoo Mail, and Delicious accounts wiped out before you even have a chance to respond.

I believe services have some duty to their users to throw out bogus letters before removing materials. Even a cursory glance at the video shows that no intellectual property was being used inappropriately. I expect the music labels and publishers to behave poorly, since they do so almost without exception. But I expect better from the Internet companies serving users.

Email From Yahoo To 1938 Media:

From: “Yahoo! Copyright”
Date: April 5, 2008 12:37:22 PM PDT
To: 1938Media
Subject: Notice of Infringement

RE: http://video.yahoo.com

SCORPIO MUSIC S.A. / CAN’T STOP PRODUCTIONS INC.’s agent has notified Yahoo! Inc. (“Yahoo!”) that you have posted copyrighted material in connection with your uploaded Yahoo! Video which is proprietary to SCORPIO MUSIC S.A. / CAN’T STOP PRODUCTIONS INC.. SCORPIO MUSIC S.A. / CAN’T STOP PRODUCTIONS INC.’s agent has further notified Yahoo! that you are not authorized to use the “Village People” material in question at:

http://video.yahoo.com/watch/2267511/7132801

Yahoo! respects the rights of both its users and the owners and rights holders of intellectual property. Accordingly, and in compliance with the Digital Millennium Copyright Act and/or other applicable federal law(s), Yahoo! has expeditiously removed and/or disabled access to the copyrighted material in question.

Through your participation in Yahoo! Video you agree to abide by the Yahoo! Terms of Service, as well as any additional Terms of Service applicable to you. The current Yahoo! Terms of Service may be reviewed at: http://docs.yahoo.com/info/terms. Pursuant to Section 6 of the Terms of Service, Member Conduct, you agree not to use Yahoo! services to “upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights (“Rights”) of any party.

As you know, Yahoo! may terminate any and/or all services and accounts without notice. This notice is provided to you as a courtesy. Without waiving or limiting any rights or remedies Yahoo! has or may have, you are hereby advised that our receipt of another notification of infringement alleging your unauthorized use of another party’s intellectual property may result in not only the removal of all videos uploaded by you to the Yahoo! Video service, but also the termination of all your Yahoo! services as well as the deactivation of your Yahoo! ID.

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