Fallout from Asiana Air Prank Provides Lesson on DMCA Takedown Notices

July 26th, 2013 by and tagged , , , , , , , , , , , ,

Fallout from a prank associated with the tragic Asiana airlines crash is teaching a valuable lesson about copyright law and the fair use defense.

When a transpacific flight crash-landed at San Francisco International Airport earlier this month, preliminary media reports focused on the key questions, “Is everyone okay?” and “What went wrong?”

But even before authorities could clear the wreckage of Asian Airlines Flight 214, whose crash claimed the lives of three and left more than 180 injured, the story had taken a different turn.

Duped by an intern intent on playing a tasteless prank, KTVU in Oakland, California aired a list of names purported to be those of the pilots of ill-fated flight.  It quickly became clear that the list was nothing more than a racist joke.


Hundreds of YouTube videos of KTVU’s snafu sprang up in the hours following the incident.  Obviously not anxious to see its gaffe immortalized, and concerned about the insensitive nature of the prank, KTVU filed “takedown notices” under the Digital Millennium Copyright Act in an attempt to suppress the content.

A DMCA takedown notice is a tool that allows the owners of digital content to request that a website operator or internet service provider take down media displayed without the owner’s permission.   If a website operator complies with a take down request, they are immunized from any legal action arising from the material in question.  This provides a substantial incentive for websites to defer to takedown notices.

The DMCA takedown notice is a remarkably effective tool for any creator of content to protect their work-product.  Its prolific use is evidence.  Google reports receiving more than 14 million DMCA copyright removal requests in the past month alone.

So why does a YouTube search of KTVU still yield dozens of clips of the Asiana Airlines debacle, many of those clips with millions of views?

It has to do with the way those clips are being used.  Copyright law allows the free use of a protected work for criticism, comment, news reporting, teaching, scholarship, or research.  So while the KTVU news clip is copyrighted content, those who want to voice an opinion on the situation by posting it to their YouTube account are entitled to do so.  The idea is to balance the author’s right to compensation for their work against the public interest in the spread of ideas and information.  In this case, people were clearly more interested in poking fun or expressing anger at KTVU than in profiting from the stations’ copyrighted content.

Given the digital photograph’s vulnerability to online misappropriation, professional photographers should be particularly aware of the fair use defense.  More often than not it will be the foundation of any defense to DMCA takedown notice, and in the case of legitimate fair uses, it will overcome the photographers claim of copyright infringement.

Whether a use qualifies for the fair use defense is determined on a case-by-case basis. A court will consider four factors in making its determination:

1)  the purpose and character of the contested use

2) the nature of the copyrighted work

3) the amount and substantiality of the portion taken, and

4) the effect of the use upon the potential market.

The Stanford University Libraries have put together an excellent in-depth analysis of the four factors, and Columbia University’s checklist can help in the initial evaluation of a fair use defense.

If you believe your work-product has been illegally used online and want to file a takedown notice, this quick guide explains the basic steps to putting together a claim.

Posted in copyright, copyright infringement, Digital Millenium Copyright Act, Fair Use, First Amendment rights, National Press Photographers Association, News Photography, NPPA, photographers, photojournalism, Uncategorized | No Comments »

Maryland Judge: Videotaping Cops in Traffic Stop is Allowed

September 28th, 2010 by Alicia Calzada and tagged , , , , , ,

There was a victory for photographers rights this week when a Maryland judge dismissed several charges against a man who shot video of a police stop and posted the footage on YouTube. After discovering the video online, police arrested the man and charged him with violating wiretapping laws as well as a law that prohibited videotaping of traffic violations.

In his ruling, Judge Emory Plitt, Jr. dismissed four counts against citizen photographer Anthony Graber III, stating, “Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public. When we exercise that power in public fora, we should not expect our actions to be shielded from public observation.” (State v. Graber, No. 12-K-10-647 at 18-19 (Cir. Ct. Harford County Sept. 27, 2010).

First, Judge Plitt ruled that the wiretapping statute only prohibits the recording of a private conversation. Then he concluded that the conversation between the trooper and Graber was not private. “[T]he recorded audio exchange between the Defendant and the Troopers was not a private conversation as intended by the statute.” Maryland wiretapping statute requires consent of both parties to record a private conversation. However, it “specifically restricts the interception of an oral communications to words spoke in a private conversation.” (Id. at 5-6)

The court then went on to elaborate on prior cases from over a dozen other jurisdictions which have concluded that a police officer performing his official duties does not have a reasonable expectation of privacy.

In total, the court dismissed three counts on statutory grounds and went on to address a fourth count, which required a person to get permission from the government before filming certain traffic violations such as reckless driving. Judge Plitt found it unconstitutional under both the Maryland and U.S. constitutions for the state to require a photographer to seek permission before videotaping a traffic violation in a public forum.

Read the opinion here.

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Posted in Access, law, photojournalism, Uncategorized | 1 Comment »