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UPDATE: CBS has retracted all copyright infringement claims (Facebook and YouTube) 

HamRadioNow episodes 364 (Icom Stuns, Kills DMR) and 365 (NCIS Newington) both used a few minutes of footage from the CBS program NCIS. CBS filed copyright violation notices on the episodes as they appeared on YouTube and Facebook (we recorded them on Facebook Live). I'll tell you where that stands down the page, but first, some background. (no peeking)

The NCIS episode was titled Trapped, and ham radio played a significant role in plot. In most NCIS episodes, somebody is or was killed, and the episode revolves around solving the case. In Trapped, the guy who was killed happened to be a ham, and another ham was the key to the clues that solved the murder. It was a stretch to have ham radio be the link, but why not? A little publicity in prime time couldn't hurt. What could possibly go wrong?

That alone would be enough to give the episode our attention, and probably show a little footage of how we were portrayed. Prime Time usually gets something wrong, which spins up a lot of hams, and it's a fun circus to watch. But wait... there's more.

Although neither ham was 'the bad guy,' we still ended up with a black eye. Both hams were shown to be social misfits, loners, using radio as the one way they had to reach out to others. The dead ham was analyzed by an NCIS profiler (and appeared posthumously through his answering machine message), and the clueless ham-with-a-clue, who had a lot of unfortunate time on-camera, was described this way by one NCIS agent (himself a former ham, or at least the son of one), "...no driver's license, no home phone, no cell phone, no reportable income since 2007, so I think this guy is going to be exactly who you picture when you think of ham radio weirdo." (emphasis added, sort of).

That earned CBS a place on the show for sure. I captured all the show footage that directly related to hams, and used it as we reviewed the material. 

When we recorded Episode 364, we were mostly talking about Ray Novak N9JA's blog post warning about some things in the 'commercial' digital modes that have invaded ham radio. I'd just noticed comments on the NCIS show, hadn't watched it yet (I am a fan of the show, sort of... well, I do watch it regularly, but in delay). So I quickly scraped through the little thumbnail pictures on the show's timeline, looking for signs of radio equipment, found some, and grabbed the footage. I got lots of 'bad' ham radio, but I missed the worst stuff. When I watched the whole thing, I prepped the second show, NCIS Newington. I carefully edited three sets of clips: Bad Procedure, The Gear, and Profiles of the Hams.

When you or I use copyright material on Facebook or YouTube, it gets flagged by 'bots that look for identifying images or sounds that match that material. It's supposed to be reviewed to see if it qualifies for Fair Use, the ambiguous law that lets a producer like me use copyrighted material without permission under some pretty limited guidelines.* What really happens, in my experience, is that a copyright violation is automatically initiated. In the old days (two years ago) that would mean a 'Takedown' - the show is blacked out, or if it's just audio that's in alleged violation on a video, the audio track is silenced (the whole track, not just the offending segment).

That can happen today, but producers have realized (and YouTube has offered them) that there's an opportunity to make money. They can 'monetize' the video with their own ad, usually as a preroll that plays before the disputed show, and they can block me from making money. That's what CBS did with my YouTube videos. Facebook doesn't seem to have that option, so it was a 'take down' on Facebook.

When that happens, a producer (like me) can dispute the takedown/monetization based on whatever criterion they believe gives them the right (privilege?) to use the footage. Maybe they had a license or permission that the 'bot didn't know about, but most claims would be based on Fair Use. Fair Use is thoroughly, often comically misunderstood by people producing YouTube content. I think I've got a good handle on it, especially when it comes to how I may or may not use other TV footage. I also understand that the law is vague, and it can ultimately come down to 'tell it to a judge.' There aren't enough pig-clicks in ham radio for me to afford that.

I've used the Fair Use defense a few times before. The first was a program reviewing Last Man Standing (HRN 49: Last Ham Standing). That's an ABC show, but it's produced by Fox, and Fox filed the takedown (back in the dark ages). I appealed. Fox agreed with me (once a human watched my show?). An appeal on another show — HRN 276 — 'timed out' when the producer didn't respond, so I 'won' that one, too. The show I used was a NatGEO webisode called Before Mars. I used their footage in my extended introduction to last year's TAPR DCC Sunday Seminar (Part One).

By the way, both YouTube and Facebook immediately restored the program on my appeal, not after a decision, so I lost little 'air time.' But it can be 'costly' if I lose. My show depends on YouTube, and if they find me infringing three times, I'm outtathere. So winning is important.

Where we stand with NCIS

I immediately filed appeals with both Facebook and YouTube. Initially, both were denied, but not by Facebook or YouTube. They stay out of it as much as they can. No, it's the copyright holder who gets first crack. That fox is guarding the henhouse. And again, the fox is probably a 'bot. This is the first time I've lost the first round. I figure my claim is so obvious, once someone looks at the show and how their footage was used, that they either approve it, or just go away and let it time out. But it's getting tougher.

And YouTube adds a layer of caution. Basically it's "you can appeal again, but if you lose (and again, the copyright holder is also the umpire), it's Strike One, and three strikes you're out."

I think they're trying to scare the wannabees who think that they're protecting themselves by adding "No Copyright Infringement Intended" as they just repost the latest Taylor Swift video. They need to study a little harder at the School of Fair Use (which, by the way, is Stanford University).

So I take it seriously. I studied up, and while I can't see all the potential outcomes, I've learned that I can keep fighting until they eventually sue me (Cyndi - don't read this).

I appealed both rejections. CBS caved on Facebook, accepting my second appeal. Facebook puts an odd limit on framing disputes and appeals. My initial dispute was limited to 200 characters. The appeal was limited to 700. So in the first plea, about all I could say was "Fair Use". The second had to be compact, but it let me make the case. Well enough, it turns out.

My YouTube appeal is still pending. So if you keep in mind that it's really CBS making the complaint about the exact same footage from the exact same show, logic says they'll capitulate on YouTube, too. I know... silly human. So we'll see.

UPDATE: CBS has retracted all copyright infringement claims (Facebook and YouTube) 

*Oh, what's my Fair Use?

It's adding something like commentary or a review, using just enough to get the point across, and not losing them their audience because I'm giving away their store. 

Obvious, right? But unless you're a federal judge, your opinion doesn't count.