[RickyMaveety]

Originally Posted by Daithi

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.

Originally Posted by Shaggy

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.

Originally Posted by Steve Jordan

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.