“These defenses typically turn on facts not before the court at that stage in the proceedings. “Brownmark correctly notes that courts usually should refrain from granting Rule 12(b)(6) motions on affirmative defenses,” writes Judge Richard Cudahy in his opinion, referring to the type of motion seeking dismissal for failure to state a claim upon which relief can be granted. On Thursday, a panel of three judges unanimously agreed that the judge had appropriately dismissed the case. For instance, the Electronic Frontier Foundation, which has been one of Viacom’s most vocal critics in its legal pursuit of YouTube, filed an amicus brief in support of Viacom. The owner of “What What (In the Butt)” wasn’t happy, so the company appealed the judgment. PHOTOS: ‘South Park’s’ Most Famous SpoofsĪ federal judge ruled that South Park’s producers made “transformative” use of the video by accomplishing “the seemingly impossible - making the ‘WWITB’ video even more absurd by replacing the African-American male singer with a naive and innocent 9-year-old boy dressed in adorable outfits.”īrownmark was even ordered to pay Viacom’s legal fees. In the episode, the South Park characters create their version of “What What (In the Butt)” to accrue enough “Internet money” to buy off the striking Canadians, an episode that ironically led to the owners of a real-life Samwell video seeking their own compensation in a courtroom. In 2008, South Park aired an episode called “Canada on Strike,” which satirized the 2007-08 Writers Guild of America strike, viral videos and the difficulty of monetizing Internet fame.
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