Using the DMCA to Remove a Video Because It Is Embarrassing

by Paul Alan Levy

The New York Times has a story today about a video prank and its consequences for Domino's.  Two employees made up a story about polluting products at Domino's pizza with mucus and such, made some short videos in which they claimed that they were producing such Domino’s cheese steaks for delivery, then posted them online. In one of the videos, the female voice remarks that the employees’ manager doesn’t know what they are doing because the manager “is back in the back reading the newspaper, like always, while we are out here, clowning around, putting snot in people's food.”

The story reports that the videos have been removed from YouTube "because of a copyright claim from Ms. Hammonds" (one of the two employees).  But the Times links to a YouTube video from the CEO of Domino's profusely apologizing for the actions of the two "team members" (that awful euphemism for "employees") and assuring the public that the food available for purchase at Domino's is not adulterated.

Somehow it seems hard to judge all this without seeing the context of the YouTube posting.  We may presume the falsity of the assertions that these food products were actually prepared for delivery to customers (and the implicit assertion that Domino's staff engage in such abuses regularly).   And yes, Domino's deserves protection from having knowingly false statements about it online.  But somehow it seems a perversion of copyright law for the DMCA to have been used to take the video down.  Since it was Hammonds who made the copyright complaint, she must not have been the one who posted it to YouTube (she could take down her own video after all).  Once there is a controversy, might not the posting of the video, as a way of informing the public about the misconduct of Domino's staff, be fair use?  Or perhaps this is really a commentary on the hostility of low-paid fast food "team members" toward a higher paid "team member." Why should the video be removed before the the poster has had a chance to respond to the copyright infringement charge?

Taking down the YouTube "prank video" about Domino's seems a bizarre abuse of the DMCA.  Yes, Domino's would be entitled to complain about a libelous video, and to publicize its response, but here we are seeing only the Domino's response, but not the subject of the response.

I wonder if this doesn't tend to reinforce the need to change the DMCA so that takedowns don't happen without notice and an opportunity to respond 

Note: the videos are still available on the always reliable Consumerist.

Comments

[Andrew Breza]

Because the videos were apparently made while the "team members" were on the clock, Dominos could easily claim that they own the rights to them. For example, my employer explicitly states that they claim ownership over everything I make while at work.

This post (c) my company, 2009.

[Paul Levy]

Nice try, but inconsistent with both the law and the facts. The Times article says the takedown was by Hammonds, not Dominos, and correspondence with the Times reporter confirmed that. Moreover, to be a work for hire, Hammonds being on the clock would not be enough for Domino's to claim ownership. The video must have been made "by an employee within the scope of his or her employment." Somehow, I doubt that.

[Laura Lee]

It doesn't seem as though a company should have to rely on copyright to remove a video that is slanderous. There should be remedies besides copyright. I have read many of the comments about the video, things like "I will never eat at Dominos again." This is not a case of a video that is offering a fair commentary or criticism of an organization which would have news value. I worked at Dominos for many years, and still used to enjoy the food even after so many years of eating it. I have witnessed many many staff members preparing food and never saw anything remotely like that video. Yet while I believe the food is safe intellectually, the content was so disgusting and the association with the Domino's brand so strong that the thought of the food right now makes even me gag. So there should be some kind of protection for a company against this sort of torpedoing without making a copyright infringement argument.

[Commercial firm]

Thats a very nice article I have come across.I totally agree with Laura Lee's word That it doesn't A company should have to rely on copyright to remove a video that is slanderous.There should be remedies besides copyright.Anyway Thanks a lot for sharing.Keep it up.