Piracy or Fair Use?

Viacom Sues Operators of nickreboot.com for Streaming Nickelodeon Shows for ‘Educational’ Purposes.
April 6, 2015

Viacom, the parent company of Nickelodeon, recently filed a copyright and trademark infringement suit against the operators of <nickreboot.com> for pirating Nickelodeon shows and using “similar imitations of Viacom’s Nickelodeon Marks” to create an impression that the website is affiliated with Viacom.[1]  The website which had been live streaming classic Nickelodeon shows from the 1990’s and early 2000’s and offering on-demand viewing at an annual rate of $35.99 was originally launched in 2012 but was temporarily shut down in 2013 by its operators who feared a lawsuit after the website received publicity from several media outlets. [2]  The website was later reopened with the stated purpose of providing “a medium for commentary, criticism, educational review, and research of Nickelodeon” as it was during the 1990’s and early 2000’s—outlining fair use as an anticipated legal defense.[3]

However, Viacom alleges that the defendants have willfully and maliciously infringed Viacom’s exclusive rights and can demonstrate a prima facie case of copyright infringement considering <nickreboot.com> has been pirating entire television episodes owned by Viacom.[4]  A “reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism,” however, if the reviewer “cites the most important parts of the work, with a view, not to criticize, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy.”[5]  To prove the affirmative defense of fair use the defendants must demonstrate that the educational purposes of <nickreboot.com> outweigh infringement when considering:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use on the potential market for or value of the copyrighted work.[6]

The defendants will have difficulty proving that <nickreboot.com> operates under fair use and is not piracy because although the website has a stated educational purpose, there is little that is transformative about commercially reproducing complete episodes from popular Nickelodeon shows.  The defendants’ streaming of Nickelodeon shows, in some cases through paid subscriptions, is sufficient for Viacom to establish a prima facie case of copyright infringement considering <nickreboot.com> has affected Viacom’s Nickelodeon market by competing with Viacom’s own Nick apps and soon to be launched direct-to-consumer service.[7]

In addition to copyright infringement, Viacom also alleges that the defendants have infringed Viacom’s trademarks by using “marks confusingly similar to Viacom’s federally registered Nickelodeon Marks” to trade on Viacom’s goodwill.[8]  Viacom’s trademark related claims also include “cybersquatting” for using the “NICK word mark” in their website name and “false designation of origin” for creating the false impression Viacom is affiliated with the website.[9]  Together, Viacom alleges that the defendants have used these similar marks to gain an unfair competitive and monetary advantage to Viacom’s detriment.[10]  Viacom’s allegations that the defendants have disseminated pirated Viacom works for commercial purposes and promoted its service with Nickelodeon Marks are likely sufficient to demonstrate the piracy nature of <nickreboot.com> and preempt a fair use affirmative defense.


[1] Complaint at 9-11, Viacom Int’l Inc. v. Does, No. 15CV0446 BAS BLM, 2015 WL 953504 (S.D. Cal. Feb. 27, 2015).

[2] See Eriq Gardner, Viacom Sues Operators of Online Channel Playing “Classic” Nickelodeon, Hollywood Rep. (Mar. 2, 2015, 6:36 AM PST), http://www.hollywoodreporter.com/thr-esq/viacom-sues-operators-online-channel-778512.

[3] Supra note 2.

[4] Supra note 1, at 9-10 (alleging copyright infringement per 17 U.S.C. §§ 501, et seq.).

[5] Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 550 (1985) (quoting Folsom v. Marsh, 9 F. Cas. 342, 344-45 (C.C.D. Mass. 1841)).

[6] 17 U.S.C. § 107.

[7] See Eriq Gardner, Nickelodeon to be Available without Pay TV Subscription, Hollywood Rep. (Jan. 29, 2015, 5:54 AM PST), http://www.hollywoodreporter.com/news/nickelodeon-be-available-pay-tv-768201.

[8] Supra note 1, at 10 (alleging trademark infringement per 15 U.S.C. § 1114(1)).

[9] Supra note 1, at 11-12 (alleging false designation of origin and cybersquatting per 15 U.S.C. § 1125(a), (d)).

[10] Supra note 1, at 13-14 (alleging unfair competition per common law and Cal. Bus. & Prof. Code §§ 17200, et seq.).