Margaret Simons wrote about the now infamous Freeview spoof in Crikey Tuesday. She left something out. This was my response to Crikey, although it wasn’t published.
Margaret Simons’ otherwise excellent coverage of the Freeview spoof video saga was somewhat sullied by a last line that reads “At the time of publishing, you can view the spoof video here, but we anticipate it will get taken down again, so quick sticks!”
What Simons failed to note, either in the article or in drawing that conclusion, is that the video (as a parody) is protected speech both in Australia and the United States. It isn’t clear from the article whether the take down notice received by YouTube was made under US law (where the video would be hosted) or under Australian law, but the result is still the same in both jurisdictions: a parody of this
nature is clearly legal.
In Australia, The COPYRIGHT ACT 1968 – SECT 41A clearly defines fair dealing (our weaker version of fair use) in this context: “A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, does not constitute an infringement of the copyright in the work if it is for the purpose of parody or satire.” The University of Melbourne notes that this includes “Audio-visual works (cinematographic films, sound recordings & broadcasts).”
In the United States, the Copyright Act of 1976, 17 U.S.C. ?Ç¬ß 107 includes the line “the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”
If the law firm backing Freeview made the claim under the US DMCA, they could be found liable for making a false claim. A standard claim must include the words “I swear, under penalty of perjury, that the information in the notification is accurate.” If the lawyers had spent 5 seconds on Google they would have discovered that the video was not an infringement of copyright under existing and tested law.