It’s nearing Halloween, so it must mean the anniversary of the Digital Millennium Copyright Act is just around the corner. In fact, it was 10 years ago, on Sunday, that Congress passed the DMCA, on October 12, 1998. The law was signed by President Clinton on October 28, 1998.

The information and news service that I have launched, BroadbandCensus.com, is “celebrating” the passage of the law with the inaugural event of the Broadband Breakfast Club. The breakfast event will take place on Tuesday, October 14, from 8 a.m. to 10 a.m., at the Old Ebbitt Grill at 675 15th Street NW, Washington, DC.

This event will bring together several key stakeholders together to share perspectives on this topic:

• Drew Clark, Executive Director, BroadbandCensus.com (Moderator)
• Mitch Glazier, Senior Vice President, Government Relations, Recording Industry Association of America
• Michael Petricone, Senior Vice President, Government Affairs, Consumer Electronics Association
• Wendy Seltzer, Practitioner in Residence, Glushko-Samuelson Intellectual Property Law Clinic, American University Washington College of Law
• Emery Simon, Counselor, Business Software Alliance

Breakfast for registrants will be available beginning at 8:00 a.m., and the forum itself will begin at around 8:30 a.m., and conclude promptly at 10 a.m. The event is open to the public. The charge for the breakfast is $45.00, plus an Eventbrite registration fee. Seated attendance is limited to the first 45 individuals to register for the event.

Future events in the Broadband Breakfast Club monthly series will feature other key topics involved in broadband technology and internet policy. In fact, you can mark your calendar for the next event on Tuesday, November 18, from 8 a.m. to 10 a.m., also at the Old Ebbitt Grill.

For more information about BroadbandCensus.com, or about the Broadband Breakfast Club at Old Ebbitt Grill – on the second Tuesday of each month – please visit http://broadbandcensus.com, or call me at 202-580-8196.

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?