Universal Says It Can Ignore Fair Use In DMCA Takedowns

from the and-it-might-be-right dept

Last year, we wrote about the case where Universal Music sent a takedown notice to YouTube when a woman posted a short (29-second) video of her toddler running around with a Prince song (barely audible) in the background. Universal backed down when challenged on the takedown notice, but the woman (with the help of the EFF) hit back and have sued Universal Music for a false takedown.

The DMCA has provisions for a copyright holder to assert ownership, at which point the service provider needs to takedown the content. Whoever posted the content can protest that the content was legally posted -- which is exactly what happened in this case. However, the DMCA also says that filing a false DMCA notice opens one up to damages from those whose content was taken down. This was in an effort to discourage false DMCA notices. This provision was used last year against Viacom for its false takedowns on satirical clips of the Colbert Report.

The question then, is whether or not filing a takedown notice on content that is used in a way consistent with "fair use" is a misuse or not. Universal Music's claim is that it is not reasonable for the copyright holder to take fair use into consideration before sending a takedown notice. At a first pass, it sounds like the judge agrees.

As ridiculous as this whole situation is, the judge and Universal Music may be correct under the existing law. There isn't anything in the law that says the copyright holder needs to take into account the user's defenses. It just says they need to be the legitimate copyright holder (which Universal Music is).

The real problem, then, in this story isn't Universal Music's actions (though Universal was acting in a rather heavy handed manner in getting the video taken down), but with the DMCA itself that forces a takedown before the user gets to respond with a defense. It's this "notice and takedown" provision that's a problem. If, instead, we had a "notice and notice" provision that allowed the user to respond before the takedown occurred, it would be a lot more reasonable and would avoid ridiculous situations such as this one.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Ima Fish, Jul 21st, 2008 @ 6:51am

    "As ridiculous as this whole situation is, the judge and Universal Music may be correct under the existing law."

    Thank you, you're the first site I've read about this issue that got it right. I find it highly doubtful that a court will impose a duty on a copyright holder to consider the infringer's possible defenses prior to filing a DMCA take-down request. It just won't happen, and I'm shocked that the EFF will hand Universal this easy victory.

     

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  2.  
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    Phil Peterman, Jul 21st, 2008 @ 6:52am

    DMCA and Fair Use

    The current process seems reasonable to me. The copyright holder requests a takedown, the service provider complys, the original poster contends fair use and at that point the service provider restores the content. Now the copyright holder then has to decide whether or not to move forward. The real problem is that the courts have never come up with a clear definition of fair use.

     

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  3.  
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    Vernon W, Jul 21st, 2008 @ 7:19am

    Are they psycho?

    But of course!

    A sense of Extreme Entitlement and Grandiose sense of self-worth seem to be displayed by Universal.

    Makes perfect sense to me.

     

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  4.  
    identicon
    Nick, Jul 21st, 2008 @ 7:21am

    It would probably help to know what the law says:
    "Any person who knowingly materially misrepresents under this section... (1) that material or activity is infringing..[shall be liable]"
    Arguably, if a copyright owner sends takedown notices en masse (in response to all results for "prince") it probably doesnt "knowingly misrepresent" that the material is infringing. I think that gets Universal or any other copyright owner off the hook for the first takedown notice, and which is a noted flaw with the DMCA takedown procedure.
    The user then sends a counternotice if they think their activity is covered by fair use, or if the party sending the takedown has no right to claim copyright infringement. Mike, here's your notice and notice provision, though it occurs after the content has been taken down.
    At this point, the material is back up and the copyright owner now has notice of the user's claim. If the copyright owner wishes to take further steps against the user, believing it is right and the user is wrong, this is where liability for a false claim comes into play. Activity covered by fair use is not "infringing" (a legal determination), so claiming that something obviously covered by fair use is infringing opens the door for liability.
    The article is not absolutely clear, but it appears the woman sued before Universal ever sent a second notice. As such, it's probably tough to say that Universal "knowingly misrepresented" that the clip infringed on its rights (unless you could show they had no rights at all to the music involved). I love the work the EFF does, but based on what I'm looking at here, this one may not work out for them.

     

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  5.  
    identicon
    Nick, Jul 21st, 2008 @ 7:21am

    It would probably help to know what the law says:
    "Any person who knowingly materially misrepresents under this section... (1) that material or activity is infringing..[shall be liable]"
    Arguably, if a copyright owner sends takedown notices en masse (in response to all results for "prince") it probably doesnt "knowingly misrepresent" that the material is infringing. I think that gets Universal or any other copyright owner off the hook for the first takedown notice, and which is a noted flaw with the DMCA takedown procedure.
    The user then sends a counternotice if they think their activity is covered by fair use, or if the party sending the takedown has no right to claim copyright infringement. Mike, here's your notice and notice provision, though it occurs after the content has been taken down.
    At this point, the material is back up and the copyright owner now has notice of the user's claim. If the copyright owner wishes to take further steps against the user, believing it is right and the user is wrong, this is where liability for a false claim comes into play. Activity covered by fair use is not "infringing" (a legal determination), so claiming that something obviously covered by fair use is infringing opens the door for liability.
    The article is not absolutely clear, but it appears the woman sued before Universal ever sent a second notice. As such, it's probably tough to say that Universal "knowingly misrepresented" that the clip infringed on its rights (unless you could show they had no rights at all to the music involved). I love the work the EFF does, but based on what I'm looking at here, this one may not work out for them.

     

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  6.  
    identicon
    Anonymous Coward, Jul 21st, 2008 @ 7:25am

    Re: DMCA and Fair Use

    The problem is that legal content is removed for that given period of time between takedown and contention. A notice-and-notice system would be better, even if there was a limited time (say, a week or so) for the accused to respond with a defense before the takedown went through.

     

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  7.  
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    Dirk Belligerent, Jul 21st, 2008 @ 7:32am

    I just posted a video of film reviews on YouTube using clips from a pair of Universal movies - Wanted and Hellboy 2 - culled from the trailers they had available at Apple? Under the insane strictures of today's extremist copyright jihadism, the video could be yanked because I used perhaps 30 seconds of their advertising materials in a fair use context?!? I don't diss them or even use the audio, but to these nutcases, it won't matter?

    Excessive and punitive punishments like this only breed deeper contempt for laws, not more respect.

     

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  8.  
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    shmengie, Jul 21st, 2008 @ 7:37am

    "The real problem, then, in this story isn't Universal Music's actions...but with the DMCA itself..."

    there's a problem with the dmca? inconceivable!

     

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  9.  
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    Ljlego, Jul 21st, 2008 @ 7:43am

    Innocent Until Proven Guilty

    It seems as if this concept, once a core tenet of the American Justice System (represented by two equally important groups, but that's another story), is being failed by many Internet-related laws. This is one of them. The immediate takedown assumes that the provider or author of the content is guilty. But, considering the inconsequential nature of most videos affected by the takedown notices, it's not really worth griping about too much.

     

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  10.  
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    wasnt me, Jul 21st, 2008 @ 7:51am

    this is actually something "healthy" as it is uncharted territory, i guess a 1st step in clearing up or perhaps making more mess into a very messy situation.

     

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  11.  
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    PixelPusher, Jul 21st, 2008 @ 9:05am

    Re: DMCA and Fair Use

    "You sir are a terrorist. Now go to jail. later we'll hear your objections to the charges."


    Heavy handed, you bet, but by your definition, it's reasonable.

    This is why due process needs to be involved. The above used to be fiction, but now is the 'law' of the land.

     

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  12.  
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    deadzone (profile), Jul 21st, 2008 @ 9:20am

    It could be simple

    It seems like it could be cut and dry.

    Post the whole song, video, or movie and it's without permission and it's copyright infringement, post a portion of a song, video, or movie without permission and it's Fair Use as long as no profits are derived from it's usage.

    Simple right? Or is it just totally ludicrous thinking?

     

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  13.  
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    PaulT (profile), Jul 21st, 2008 @ 9:22am

    Re: Are they psycho?

    The Corporation was an interesting documentary from a few years ago (link to the free, legally available archive.org copy). One of the things it examines is that since corporations are legally considered as individuals under US law, what kind of person would a corporation be?

    The answer (as I recall, it's been a few years since I watched): a psychopath.

     

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  14.  
    identicon
    Jerry Lees, Jul 21st, 2008 @ 9:52am

    HMMMM sounds like VERO on ebay

    This sounds exactly like VERO on ebay.

    Rights owner protests = Auction taken down = Seller looses listing fees.

    This happend to me a couple times trying to sell a Crawford car alarm. Crawford protested saying they were the owner of the trademark and my auction (for an alarm I legally owned and had in hand) was a infringement.

    Clearly me owning the device wasn't the problem. Unloading it on ebay was, since they claimed that they didn't allow sales by non-authorized re-sellers and didn't allow sales on the internet.

    After two failed attempst to list the item I finally decided to list it after 5pm on a FRIDAY... as a two day auction. They never saw it because the auction police at Crawford never saw it until atleast monday-- all off work for the weekend. And by the time they would have, it was sold and paid for.

    BOOOOYAH, Crawford! BOOOOYAH, Ebay!

     

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  15.  
    identicon
    Liquid, Jul 21st, 2008 @ 10:41am

    Re: HMMMM sounds like VERO on ebay

    Genius sir, pure genius.

    You know that they wanted to make sure that you didn't profit off their product even though you fully paid for it in the first place. They wanted to make sure that if they couldn't get their cut of the profits no one would.

    Personally once you pay for something and unless it's a service that item(s) should become yours. So that you may be able to do with it as you see fit with out, out side sources such as this to interfere. Which is what people have been saying all along with the whole copy rights crap.

     

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  16.  
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    hegemon13, Jul 21st, 2008 @ 12:14pm

    Re: Re: HMMMM sounds like VERO on ebay

    "once you pay for something and unless it's a service that item(s) should become yours"

    In this case, it was. This is a physical good, to which right of first sale clearly applies. Jerry, you could make a lot more money off of your security system by now turning around and suing Crawford. The Tiffany case sets the precedent squarely on your side.

     

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  17.  
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    Greg Beck, Jul 21st, 2008 @ 2:20pm

    fair use

    I think fair use is more than just a defense. It's a fundamental and essential part of the structure of copyright law. Fair use of a copyrighted work does not infringe any of the copyright owner's rights in the work, and therefore anyone who ignores obvious cases of fair use also "materially misrepresents . . . that material or activity is infringing" under the DMCA, 17 U.S.C. 512(f). Sending a DMCA without any consideration of fair use seems like a clear case of misrepresentation to me.

     

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  18.  
    identicon
    Not Mike, Jul 22nd, 2008 @ 12:01am

    Re:

    Mike, here's your notice and notice provision, though it occurs after the content has been taken down.
    Then that's notice and takedown (and then notice), not notice and notice.

     

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  19.  
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    Anonymous Coward, Jul 22nd, 2008 @ 12:24am

    Willful Blindness

    There isn't anything in the law that says the copyright holder needs to take into account the user's defenses. It just says they need to be the legitimate copyright holder (which Universal Music is).
    Not quite. Under the DMCA the copyright holder must also attest that the "material or activity is infringing". Is it infringing if it is fair use? If not then the claim is false. And a failure by the copyright holder to check to see if it was fair use would probably be a case of what is legally called "willful blindness". In that case they would still be guilty of filing a false claim. Or so it seems to me (IANAL).

     

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  20.  
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    ZZZZZZZZZZ, Jul 22nd, 2008 @ 12:34am

    No such thing as fair use

    Actually, Universal isn't just arguing that they shouldn't have to consider obvious fair use, they are arguing that it doesn't even exist by saying "there's no such thing as an obvious fair use."

     

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  21.  
    identicon
    Scott, Jul 22nd, 2008 @ 4:22am

    Re: Fair Use

    Under fair use, it doesn't matter whether your review is positive or negative. You are supposed to be able to use reasonable excerpts. And 30s is hardly unreasonable. Shorter than a trailer. Of course I would not be surprised, in this age of takedown everything attitudes, if a review site received the full attention of their lawyers.

     

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  22.  
    identicon
    JustMe, Jul 22nd, 2008 @ 4:24am

    No, Universal and the judge are both wrong

    You clearly DO have to take context in to account. The Universal lawyer knows the definition of 'fair use' (and I suppose, free speech) and should be able to identify same.

    A poor analogy (haven't had my coffee yet): It is illegal to drink alcohol out of doors in most locations, except on private property or restaurants with outdoor seating. A police officer sees someone with a bottle of beer. He would be right to write a ticket if the person is walking down the street. If the person is standing in the outdoor seating area of a restaurant or on the lawn of a private house then he may ask them questions, but probably not even that. This is because he sees the context of the incident.

    The judge has a point, the law isn't written very well. Universal has a minor point, they don't have a crystal ball and can't "discern the intent" of someone. However, that is not germane in this case. 'Innocent until proven guilty' applies here as well. DMCA notices should be sent only in cases where there is no *obvious* reason the material might be infringing.

    There are several ways in which a video with a portion of a song would not be infringing. Therefore a video with a song playing in the background of a clip about a baby is not infringing, so they were wrong to send the notice in the first place.

     

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  23.  
    identicon
    Greg, Nov 18th, 2008 @ 4:47pm

    Bogus VERO Takedowns

    If you need help try http://www.Bogustakedowns.com Fight a Bogus takedown

     

    reply to this | link to this | view in thread ]


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