DMCA takedown notices should take fair use into consideration

by on August 21, 2008 · 31 comments

A U.S. district judge got it right yesterday when he refused to dismiss a lawsuit against Universal, ruling that copyright holders should take into account fair use prior to issuing DMCA takedown notices. The dispute arose last year when a woman received a takedown notice over a YouTube video featuring a kid dancing to a Prince song owned by Universal.

Over at Ars, fellow TLFer Tim Lee has a good overview of the issue in which he explains how the various legal arguments played out. EFF, which represents the plaintiff in the case, offered several compelling reasons why ignoring fair use in a takedown notice might actually constitute “bad faith” under the DMCA.

As Cord discussed a few months ago, my employer, the Competitive Enterprise Institute, recently received a meritless takedown notice for a global warming ad we posted on YouTube which featured about seven seconds from a copyrighted video clip. Our use of a trivial portion of a copyrighted video was clearly both transformative and non-commercial, yet the content owner still deemed it worthwhile to try to get the video removed.

I have no idea if the notice was sent with the intent to silence us, or if the content owner was simply ignorant of the fair use defense. Regardless, for several days, until we filed a counter-notice, our YouTube account was suspended, making over 100 CEI videos were inaccessible. (We learned our lesson about putting all your eggs in one basket—we now maintain a separate library of all of our videos on cei.org.)

Fortunately, CEI has a vigilant and experienced general counsel who promptly filed a counter-notification (as per the DMCA.) Still, we shouldn’t have had to allocate time and resources to defending a video that no reasonable person would consider copyright infringement.

It’s not too much to ask that content owners consider whether a potential infringement is fair use before sending a takedown notice. Of course, many copyright disputes are murky, so expecting copyright holders to perform a conclusive legal analysis of each unauthorized file is unfair. But when the potentially infringing content in question blatantly falls under fair use, copyright holders should be subject to penalty if they send a takedown notice anyway.

Hopefully Judge Fogel’s ruling will put an end to the status-quo’s flawed takedown system in which infringing content is fingered by computers, rather than live human beings. The burden of going after copyright infringement has traditionally rested with the content owner—so why not add one more step to the process to thaw the chilling atmosphere surrounding the fair use of copyrighted material?

  • http://www.tc.umn.edu/~leex1008 Tim Lee

    Great post, and thanks for the link!

  • http://www.blaynesucks.com Aaron Massey

    Great post, but I'm curious. Even with a separate, self-hosted library, you're missing out on being able to establish a present in the vibrant YouTube community, so how many of the problems caused by the DMCA does a self-hosted library really solve?

  • Ryan Radia

    Good point, Aaron–I suppose I should have pointed out that our primary means of video promotion is still YouTube. We just have a mirror on our site where we host high-bitrate versions of our videos (higher quality than YouTube's high quality) for media relations purposes.

  • http://www.codemonkeyramblings.com Mike T

    It would seem to me that the DMCA should be updated to make it so that when you send a takedown notice, you are legally held to a standard which assumes that you have consulted a lawyer, and thus are appraised of the legality of the item which the notice targets. Thus, anyone who files an takedown notice against a fair use item can be held liable for perjury if the judge declares that a person reasonably educated in the law would have never considered it an act of infringement.

    That may be extreme, but as it is, the DMCA is too “automatic;” it encourages people to file takedown notices because the consequences for shutting someone down when they're not harming you are insignificant in practice.

  • Ryan Radia

    My understanding is that precedent set by Judge Fogel's ruling, if applied correctly in other cases, essentially means that copyright holders can now be held liable in civil cases for sending takedown notices in bad faith. I'm not sure if there's a need to update the DMCA (well, at least not the takedown provisions) if the courts simply interpret the law properly.

  • Ryan Radia

    My understanding is that precedent set by Judge Fogel's ruling, if applied correctly in other cases, essentially means that copyright holders can now be held liable in civil cases for sending takedown notices in bad faith. I'm not sure if there's a need to update the DMCA (well, at least not the takedown provisions) if the courts simply interpret the law properly.

  • http://www.codemonkeyramblings.com Mike T

    Would the government be able to file criminal charges under this precedent someone who abuses the DMCA as a means to shut down a business and prevent it from selling products/services online?

  • Ryan Radia

    I'm not an attorney, but I don't think the government could prosecute someone who simply ignores fair use when filing a takedown notice. But if you misrepresent your ownership of content in a takedown notice, then I think you could be prosecuted for perjury. This is because a DMCA takedown must include the language “”I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”

  • gargouri2001

    really really useful info , Thanks for this post

    john
    http://xtupload.com

  • http://www.ebuster.co.uk/ eBuster

    I believe the DCMA is going too far and is being used to silence critics of corporations such as eBay who server a notice on my host because the site I run at ebuster,co,uk contains documents relating to wide scale fraud on eBay and as such it is important that pages that are displayed are not tampered with.

    This time I had some luck since eBay picked on a fake login page I displayed after I had asked eBay on several occasions to get the page remove and from what I can understand they are upset about the eBay log at the top of the pages but it’s not like the site trying to compete against eBay and provides hundreds of links back to eBay.

    The reason I present copies of pages is because eBay often remove pages where a dispute is involved so just how can anyone present case of wide scale fraud when it is becoming impossible to present evidence without have a gag order place on your host.

    Yes I understand the reason for the DCMA but using it’s powers in this manor strikes at the heart of democracy and is allowing eBay to do as it pleases and in some cases it is not possible to remove the logo as some of the pages displayed on the site have been hijacked by script injection using hexadecimal code to overwrite the original page and therefore making it all but impossible to remove the eBay tm logo and no I don’t have a zillion$ to get involved with eBays lawyers but I do have freedom of speech so if that involves moving the site offshore then that is what I will do

  • http://www.ebuster.co.uk/FBI.html eBuster

    I have it in writing that eBay has told my old host company that they are asking the FBI to investigate eBuster which I think is a total joke given all the fraud I’ve uncovered on eBay and eBay has a far from clean name.

    Yes it’s time both the FBI and the UK police looked at eBuster after he was told it’s a civil matter by the police when a fraudster using eight separate ebay accounts is allowed to sell death traps and call them cars.

    Seems like it’s one law for corporations and one law for us but still truth is not denied so easily or did I forget the right to trial by a jury is a thing of the past in the UK.

  • http://www.ebuster.co.uk/FBI.html eBuster

    I have it in writing that eBay has told my old host company that they are asking the FBI to investigate eBuster which I think is a total joke given all the fraud I’ve uncovered on eBay and eBay has a far from clean name.

    Yes it’s time both the FBI and the UK police looked at eBuster after he was told it’s a civil matter by the police when a fraudster using eight separate ebay accounts is allowed to sell death traps and call them cars.

    Seems like it’s one law for corporations and one law for us but still truth is not denied so easily or did I forget the right to trial by a jury is a thing of the past in the UK.

  • http://www.ebuster.co.uk/FBI.html eBuster

    I have it in writing that eBay has told my old host company that they are asking the FBI to investigate eBuster which I think is a total joke given all the fraud I’ve uncovered on eBay and eBay has a far from clean name.

    Yes it’s time both the FBI and the UK police looked at eBuster after he was told it’s a civil matter by the police when a fraudster using eight separate ebay accounts is allowed to sell death traps and call them cars.

    Seems like it’s one law for corporations and one law for us but still truth is not denied so easily or did I forget the right to trial by a jury is a thing of the past in the UK.

  • http://forums.plexapp.com/index.php?/user/13917-governmentcarssa/ Fernbleable

    You made some good points there. I did a search on the topic and found most people will agree with your blog.

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