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Old 08-22-2008, 02:57 AM   #1
Alexander Turcic
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Judge to copyright holders: Consider 'Fair Use' first before doing anything

Wired breaks the news with a thought provoking story on how copyright holders are to consider the "Fair Use" doctrine first before sending takedown notices to online sites.

Quote:
"Even if Universal is correct that fair use only excuses infringement, the fact remains that fair use is a lawful use of a copyright," U.S. District Judge Jeremy Fogel ruled. "Accordingly, in order for a copyright owner to proceed under the DMCA with 'a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,' the owner must evaluate whether the material makes fair use of the copyright."

Fogel added that an "allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim."
Source: Wired

You can download the original 10-page case document stating the judge's decision over here (.pdf).
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Old 08-22-2008, 04:02 AM   #2
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"Fair Use" - that's fine by me....
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Old 08-22-2008, 05:16 AM   #3
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"Fair Use" - that's fine by me....
TANSTAAFU

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Old 08-22-2008, 08:54 AM   #4
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Quote:
Originally Posted by Alexander Turcic View Post
You can download the original 10-page case document stating the judge's decision over here (.pdf).
Not until someone tells me how it's fair for me to use it.

As laudable as this may be on its face, to be legally useful it may require a lot more specification on what is considered "fair"... especially as that is something that seems to vary from society to society, and individual to individual (as members of this very site have noted, ad nauseam, in the past).

Otherwise, any reasonable supposition (i.e., someone who saw it might have paid him money for that, so I have a right to sue) could likely counter a "fair use" claim.

I don't see this as anything more than another loophole woven into the fabric of copyright law.
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Old 08-22-2008, 09:03 AM   #5
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Originally Posted by Steve Jordan View Post
Not until someone tells me how it's fair for me to use it.

[...]

I don't see this as anything more than another loophole woven into the fabric of copyright law.
Steve, the case in point was a 29-second video of a toddler dancing to Prince's "Let's Go Crazy" uploaded by a mother to YouTube. I don't see how that is not fair use, which by the way, seems pretty well defined in the US - although you are right that this is not a global arrangement, but then again, neither is copyright.

What is happening now is that content owners (again, as distinct from content creators in most cases) go after people with automated & rubber-stamped takedown notices under the DMCA. See also "why my printer received a DMCA takedown notice". I hope that cases like this will put an end to that practice.

Last edited by acidzebra; 08-22-2008 at 09:07 AM.
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Old 08-22-2008, 09:38 AM   #6
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Originally Posted by Alexander Turcic View Post
Fogel added that an "allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim."
Does this mean that the lady who posted a 30 second video of her baby dancing to Prince could sue Prince for issuing the takedown notice?

Even if that is the case, I think the power is still in the hands of big media companies that can afford the lawfirms and cost of litigation.
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Old 08-22-2008, 09:39 AM   #7
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Here is a use of "fair use" that you might agree with Steve. I'm posting here on MR and I'd like to use a quote from a book to illustrate my point or to help make a joke. I don't because of copyright concerns. Under fair use I could say "quote" (by author X).
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Old 08-22-2008, 10:22 AM   #8
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Quote:
Originally Posted by Daithi View Post
Does this mean that the lady who posted a 30 second video of her baby dancing to Prince could sue Prince for issuing the takedown notice?
That's exactly what it means. If someone issues a take down notice in "bad faith", IE they know that they don't have a valid claim but try to use the DMCA to take the content down anyway, you can bring a counter claim against them.

It (theoretically) is there to prevent the DMCA from being used by large corporations to intimidate/scare people into taking down content that the corporation doesn't like, but don't necessarily have a valid copyright claim over.
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Old 08-22-2008, 12:13 PM   #9
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Quote:
Originally Posted by acidzebra View Post
Steve, the case in point was a 29-second video of a toddler dancing to Prince's "Let's Go Crazy" uploaded by a mother to YouTube. I don't see how that is not fair use, which by the way, seems pretty well defined in the US - although you are right that this is not a global arrangement, but then again, neither is copyright.

What is happening now is that content owners (again, as distinct from content creators in most cases) go after people with automated & rubber-stamped takedown notices under the DMCA. See also "why my printer received a DMCA takedown notice". I hope that cases like this will put an end to that practice.
Okay, I'm not arguing Prince's case (I realize that may be how it sounded)... I'm merely saying that this is a legal dodge, in fact more useful to the legal system than to defendants. This will merely require lawyers to present additional pre-prepared evidence of why they consider the case in or outside of "fair use"... which they will do, and to compensate them for all that new work they will make more money from their clients on both sides of the bench.

Sure, some claimants will think first before suing someone, but if they find a lawyer who says he has the "fair use" documents covered, we'll see more drawn-out trials and more legaleze. I just don't expect there to be much difference from what we have now.
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Old 08-22-2008, 12:57 PM   #10
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To be honest, I don't think Prince issued the takedown. I think either the record company or the RIAA did.
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Old 08-22-2008, 07:17 PM   #11
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Quote:
Originally Posted by Daithi View Post
Does this mean that the lady who posted a 30 second video of her baby dancing to Prince could sue Prince for issuing the takedown notice?

Even if that is the case, I think the power is still in the hands of big media companies that can afford the lawfirms and cost of litigation.
Quote:
Originally Posted by Shaggy View Post
That's exactly what it means. If someone issues a take down notice in "bad faith", IE they know that they don't have a valid claim but try to use the DMCA to take the content down anyway, you can bring a counter claim against them.

It (theoretically) is there to prevent the DMCA from being used by large corporations to intimidate/scare people into taking down content that the corporation doesn't like, but don't necessarily have a valid copyright claim over.
Quote:
Originally Posted by Steve Jordan View Post
Okay, I'm not arguing Prince's case (I realize that may be how it sounded)... I'm merely saying that this is a legal dodge, in fact more useful to the legal system than to defendants. This will merely require lawyers to present additional pre-prepared evidence of why they consider the case in or outside of "fair use"... which they will do, and to compensate them for all that new work they will make more money from their clients on both sides of the bench.

Sure, some claimants will think first before suing someone, but if they find a lawyer who says he has the "fair use" documents covered, we'll see more drawn-out trials and more legaleze. I just don't expect there to be much difference from what we have now.

First "fair use" is not a "legal dodge." It is a very valid defense to a claim of copyright infringement. It has been (in the United States at least) for a very long time.

Any lawyer who said he "had the fair use documents covered" would be lying to his client. There really aren't any fair use documents to be covered or not covered. Fair use is essentially the use of copyright material which is not done for profit and where an attribution is made to the original source. If we didn't have fair use, you could pretty much forget about writing a research paper based on any prior published sources.

In general, music companies have been sending out scare tactic letters for quite some time, and threatening to sue unless content was taken down, despite the fact that much of that content may be fair use, and therefore not subject to legal action.

Where they are going to land themselves in trouble is where they send a scare tactic letter to a user (such as this lady with her youtube video) whose video falls clearly into the fair use category. In cases such as that, the record companies are lying to the person and using that lie to intimidate them. That is black letter misrepresentation (again, in the U.S.), and the beautiful thing about that is .... it is subject to punitive damages.

Keep in mind, Steve, that the companies sending out these letters are not unaware of what they are doing. They already have whole teams of lawyers on staff ... who probably told them ... "Yes, it's fair use, but, what the hell, if you want to send the letters, we'll send the letters." Staff lawyers tend to do what the boss says to do ... sadly.

On the other hand, there probably will be a smart lawyer who will take one of these takedown misrepresentation cases on a contingency basis and ask for a whopping amount of damages (in the punitive sense). And the judge (or jury) is going to have some nice lady who posted a snippet of music that was playing while her child was dancing to it, versus the big nasty greedy music industry .... and ... you can see where this is going. It only needs to happen once, and the music industry will think twice before they jump on someone that really does come under the fair use exception.

The thing is ... this is new territory when it comes to digital media. When I was in the fourth grade and had to write a book report, if I took a few quotes from the text to illustrate something I thought was important in the book, I wouldn't figure I would have the publishing house sending me a cease and desist notice. Times have changed, and using a snippet from a song as a part of a video assignment could land the student in court ... but for fair use, which applies to both scenarios.

What the case stands for is the ability of the copyright holder to lie to and threaten an individual in order to have them remove content that is not actually infringing.
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Old 08-22-2008, 07:36 PM   #12
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First "fair use" is not a "legal dodge."
Absolutely.
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Old 08-22-2008, 07:46 PM   #13
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On the other hand, there probably will be a smart lawyer who will take one of these takedown misrepresentation cases on a contingency basis and ask for a whopping amount of damages (in the punitive sense). And the judge (or jury) is going to have some nice lady who posted a snippet of music that was playing while her child was dancing to it, versus the big nasty greedy music industry .... and ... you can see where this is going. It only needs to happen once, and the music industry will think twice before they jump on someone that really does come under the fair use exception.
fingers crossed !!!
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Old 08-22-2008, 07:59 PM   #14
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Quote:
Originally Posted by Alexander Turcic View Post
Wired breaks the news with a thought provoking story on how copyright holders are to consider the "Fair Use" doctrine first before sending takedown notices to online sites.



Source: Wired

You can download the original 10-page case document stating the judge's decision over here (.pdf).
And, Alexander, the court is absolutely correct in its holding. To boil it down to nuts and bolts ... a company such as Universal knows perfectly well what is or is not "fair use." Their attorneys know copyright and the fair use doctrine backwards forwards and sideways.

For them to send out blanket letters threatening legal action to individuals they know fall within the limits of fair use is misrepresentation, pure and simple. And, under US law, you can't lie to someone (about anything) in order to make them do something to their detriment.

The case doesn't really state anything all that new with regard to the law. It just puts the industry on notice that they have to take fair use seriously ... as they should. Just because they hold a copyright doesn't mean they get to trample over those who make fair use of the copyright material. Generally, that means (1) not for profit, (2) a portion of the work only, and (3) with attribution. So, know, we can't all go out and make electronic copies of the Harry Potter books and just give them away ... that's not fair use.

In the long run, fair use actually benefits the artist, especially in this day and age. A lot of people who would likely never hear a Prince song might actually go out and buy a copy of it if they liked what they heard from watching the youtube video. I might quote several bits of Terry Practchet's books and others might find the quotes so funny ... they go out and purchase the whole series just as I did. My quotes would be fair use, just like the lady in the case's use was so clearly fair use that Universal really picked the wrong person to which to send their hate mail.

Keep in mind, in order for someone to make a case for misrepresentation, the person doing the lying must either have known, or should have known, that what they were saying was false. In this case, the fair use was so screamingly obvious, that Universal really either knew or should have known that there was a valid fair use defense.

Last edited by RickyMaveety; 08-22-2008 at 08:44 PM.
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