Details of SHARK v. Rodeo Folk

I knew that SHARK had recently been victorious against the Professional Rodeo Cowboys Association (PRCA), which falsely claimed copyright infringement and had YouTube disable the SHARK account. What I didn't know what the legal details, which Simon Owens directed me to at PBS' "How Animal Rights Activists Beat Rodeos in Videotaping Events."

As we animal people know, SHARK encourages activists to go to rodeos and videotape what they see. And there's the rub. The people who create the footage own the footage. Therefore, there is no copyright infringement because the material wasn't ever the property of the PRCA.

SHARK's account was closed and the videos disabled. However, the "take-down" notice was by a party who was not the owner of the material (only the owner can demand a take-down notice under the Digital Millennium Copyright Act-DMCA). This allowed SHARK to bring an action against the PRCA.

In August 2008, SHARK brought an action against the PRCA alleging not only was the notice improper, but that the PRCA knew that it was improper and sent it anyway.

 . . . .

Because the SHARK v. PRCA action was settled without any further significant legal proceedings or a court ruling, we are left to speculate as to the basis the PRCA or its media management company thought they had to issue the take-down notice in question. The PRCA's answer to the complaint contains a clue: The PRCA alleged that SHARK's claims were barred by the equitable doctrine of "unclean hands" because of its "failure to adhere to rules and guidelines posted at PRCA-affiliated arenas that expressly prohibit videotaping PRCA events." Perhaps the PRCA or its media management company believed at the time that if the videotapes were made by SHARK members in violation of that rule, it argued that the take-down notices were proper.

But making a videotape of a sports event in violation of a no-videotaping rule does not give rise to a claim under copyright law. (Although unauthorized videotaping under some circumstances might give rise to some other legal claim.) And the settlement reflects that fact.

The PRCA has agreed as part of the settlement to make a payment of $25,000 to SHARK. The PRCA also agreed that any future copyright infringement claims it makes against SHARK will be submitted to SHARK first. If SHARK refuses to remove a video in which the PRCA continues to assert a copyright claim, no DMCA take-down notice will be filed until it is reviewed by PRCA's general counsel. One clear purpose of the provision is to avoid the issuance of take-down notices by parties acting on behalf of the PRCA who may not have the appropriate legal understanding or training, or even knowledge of the facts, to determine whether there is legal justification for issuing a notice. One hopes that short-circuiting the DMCA take-down process will save both parties time and aggravation, not to mention attorney fees.

In addition, in the course of the settlement negotiations between the parties, SHARK was also able to place on the table PRCA's practices in enforcing its "no videotaping" rule. Thus, the settlement also includes an agreement by PRCA not to discriminate in its enforcement of the no-videotaping rule with respect to ticket holders and attendees at PRCA events. Presumably this means that if the PRCA, despite its rule, permits ticket holders and attendees generally to videotape at its events, it may not selectively enforce that rule against SHARK members or other animal activists. This leaves SHARK and its members free to continue their videotaping, unhindered by the PRCA.

And that's a real victory.