by Brian A. Wilkins
5/17/2009 (links and photos updated January 30, 2019)
This all started when Operation-Nation published this video, entitled “Bob Wenzel Insults ‘Africans’ During NCAA Tournament” on Youtube on April 7, 2009. I wrote about this game, and Wenzel’s comments, the day it happened as well.)
A day later, I received this email from Youtube:
This is to notify you that we have removed access to your video, CBS’s Bob Wenzel Insults “Africans” During NCAA Tournament, as a result of a notification by CBS claiming that this material is infringing.
Please Note: Accounts determined to be repeat infringers may be terminated. To avoid this, please delete any videos to which you do not own the rights, and refrain from uploading infringing videos.
For more information, please visit our Copyright Tips guide.
If you believe this claim was made in error, or that you are otherwise authorized to use the content at issue, you may file a counter notice.
Please note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be liable for damages.
– The YouTube Team
This power trip by CBS was an obvious attempt to pick on small bloggers. Operation-Nation responded with this email:
I believe your company is either ignorant to the terms of what constitutes “fair use” or are simply attempting to bully a small-time blogger. In the case of Folsom v. Marsh, 9 F.Cas. 342 (1841), there were four factors, subsequently codified in U.S. code (17 U.S.C.§ 107), which constitute Fair Use of copyrighted material. In short, “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.”
My posting of 1 minute of a 2 ½ hour long broadcast (FSU vs. Wisconsin NCAA game) is the same thing ESPN, FSN, and virtually all sports radio stations do in the USA daily. To call what I posted “copyright infringement” would mean you also want to shut down the entire business of sports radio and television commentary.
My posting of the 1 minute segment of your broadcast was to criticize the comments made by your broadcaster, Bob Wenzel, and nothing more.
In August 2008 U.S. District Judge Jeremy Fogel of San Jose, California ruled that copyright holders cannot order a deletion of an online file without determining whether that posting reflected “fair use” of the copyrighted material. CBS has not done so and I expect my file to be back online within two weeks, pursuant to the Digital Millennium Copyright Act.
1. Specific URL: http://www.youtube.com/watch?v=oDE7wk8z34k
2. Brian Wilkins; PO Box 66; Tempe, AZ 85280; user name: dabeesta17
3. I consent and declare I live in the Arizona (Phoenix) district of the United States District Court and will accept service of process from CBS or any other person who provided copyright infringement notification to Youtube.
4. I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake, misidentification, and/or misinterpretation of The Fair Use Doctrine, of the material to be removed or disabled.
Brian A. Wilkins
OPERATION NATION and The OP-NAT EYE
PO Box 66
Tempe, AZ 85280
Then finally, on April 29, I received this email:
In accordance with the Digital Millennium Copyright Act, we’ve completed processing your counter-notification regarding your video: www.youtube.com/watch?v=oDE7wk8z34k
This content has been restored and your account will not be penalized.
The YouTube Team
The moral of the story: just because someone has more money, more resources, and seemingly more power than you doesn’t mean you can’t beat them at their own game. Generally people with a lot of money who think they are powerful are stupid, lazy, and either inherited money from their dad or stole it; and at the same time, they think YOU are stupid and will succumb to pressure. Granted, the law doesn’t always work (and usually does not), but in this case it did.
If only cops, prosecutors, and judges didn’t have the “right” to hide behind quasi-judicial immunity from criminal and/or civil liability for their way-too-common malfeasance. But that’s why we have the 2nd Amendment, right?