The Truth and the “Truthiness” About Knowing Material Misrepresentations

June 16, 2012

In the spring of 2007, MoveOn.org and Brave New Films posted a spoof political attack ad video on YouTube.com. The video, Stop the Falsiness, contained clips of the Comedy Central show, The Colbert Report. Subsequently, Viacom, which owns Comedy Central, sent a “takedown” notice to YouTube alleging that the video infringed Viacom’s copyrights. After YouTube removed the video from its site, MoveOn.org and Brave New Films filed a lawsuit against Viacom alleging that Viacom “knowingly materially misrepresented” that the video was infringing. The plaintiffs took the position that the video was a “self evident fair use.” This Article argues that there is no such thing as a self evident fair use, and that the provision of the Copyright Act that creates liability for making knowing material misrepresentations does not impose liability on copyright owners who ask Internet service providers to remove material from their sites that is arguably noninfringing under the fair use doctrine.