Judge Says Copyright Holders Must Consider Fair Use Before Sending DMCA Takedowns

from the this-isn't-over-just-yet... dept

Strong copyright system supporters have always tried to push aside fair use. Sometimes they pretend it doesn't actually exist. Sometimes, they claim that it stifles creativity. However, in the last few years, they've pretty much aligned their talking points on fair use. You'll hear it repeated again and again: fair use is "just a defense, not a right." This is a bit of semantics that basically tries to minimize what fair use represents and what it's designed to allow. The argument, effectively, is that there's no "right" to fair use, and there's no clear cut meaning for fair use. Instead, it can and should only be brought up as a defense in court. In other words, fair use does not exist until a court says it exists.

This is misleading and not entirely correct. The reason fair use is allowed as a defense is because there is a right to make use of certain types of content in certain types of ways that constitute "fair use" without first needing to receive permission from the copyright holder. But, it was still this argument that Universal Music recently used to defend itself against a lawsuit from the EFF, concerning the now infamous 29-second video of a little kid dancing, with some music from Prince playing in the background. Everyone now agrees that this video was fair use. Universal Music let the video go back online and did not sue. The DMCA has a clause that allows damages to be sought against a falsely filed takedown notice -- which was basically designed to punish those who send a DMCA takedown claiming copyright over something for which they do not actually hold the copyright. In this case, the EFF claims that since this is obvious fair use, then the DMCA notice was falsely filed. Universal, on the other hand, asked the court to dismiss the case, saying it need not consider fair use when filing a DMCA takedown notice -- mainly because fair use is just a defense, not a right.

The judge handed the EFF something of a victory, though, allowing the case to move forward and noting that copyright owners should consider fair use before sending out takedown notices. To be honest, I'm a bit surprised by the decision. While I agree that it makes sense, it wasn't at all clear that the law actually meant for fair use to be taken into account. In fact, I rather doubt that this sort of scenario was even considered by those who wrote and debated the DMCA. Universal will likely appeal on this point, and so we're pretty far from establishing definitively if fair use needs to be taken into account. However, if this ruling stands, the claim that "fair use is a defense, not a right" loses a lot of its bite. The court effectively said the opposite:
Even if Universal is correct that fair use only excuses infringement, the fact remains that fair use is a lawful use of a copyright. 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.
The judge also noted that it wasn't any sort of onerous burden to expect the copyright holder to make a fair use determination, since it has to review the content to make sure it's infringing in the first place:
Undoubtedly, some evaluations of fair use will be more complicated than others. But in the majority of cases, a consideration of fair use prior to issuing a takedown notice will not be so complicated as to jeopardize a copyright owner's ability to respond rapidly to potential infringements. The DMCA already requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice; indeed, it would be impossible to meet any of the requirements of Section 512(c) without doing so. A consideration of the applicability of the fair use doctrine simply is part of that initial review.
All in all, this is a definite win for supporters of fair use -- and a definite loss for those who trot out the "defense, not a right" line. As for the rest of this particular case, though, the judge indicated that the EFF may have a difficult time winning, noting that even if the copyright holder takes fair use into account, the specifics would have to be pretty extreme to then decide that it used "bad faith" in sending the takedown. In other words, the judge is saying that Universal should take fair use into account, but that doesn't mean that sending the takedown was done in bad faith.


Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    Evil Mike, Aug 21st, 2008 @ 9:35am

    Smart Judges...

    3rd Judge this year with a level head!

    My world is turned upside-down...

     

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    Anonymous Coward, Aug 21st, 2008 @ 9:40am

    Good Decision

    Allowing the case to continue is a good decision. Maybe it will lead to a definitive ruling on this issue.

    We need less frivolous litigation, not more. The plaintiff in any case, not just copyright, has an ethical obligation to review the facts prior to making allegations. The automated sue first and let the courts decide approach is not good for anyone but the plaintiff. Why should the rest of us suffer from that burden?

     

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    Matt, Aug 21st, 2008 @ 9:56am

    it all goes back to accountability

    something we need back: accountability for people who abuse the system. This would be a nice way of doing so.

     

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    Hulser, Aug 21st, 2008 @ 9:56am

    What the law actually meant

    While I agree that it makes sense, it wasn't at all clear that the law actually meant for fair use to be taken into account.

    Mike, one of the things I like about your analyses is that you don't automatically agree with something (such as a court decision) just because it backs your point of view. I respect that you apply your principles evenly in this way. However, can you give some background on your opinion above?

    It seems like this statement by the judge...

    The DMCA already requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice; indeed, it would be impossible to meet any of the requirements of Section 512(c) without doing so. A consideration of the applicability of the fair use doctrine simply is part of that initial review.

    ...makes logical sense. Why do you think that this (or the judge's overall opinion) isn't in sync with the what the law actually meant?

     

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      ChurchHatesTucker (profile), Aug 21st, 2008 @ 10:10am

      Re: What the law actually meant

      Beat me to it.

      Since fair use is written (albeit vaguely) into copyright law, a requirement to submit a claim 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*" seems pretty clear-cut.

      OTOH IANAL.

       

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        Anonymous Coward, Aug 21st, 2008 @ 10:33am

        Re: Re: What the law actually meant

        I wonder what the definition of 'good faith' becomes in such matters - how slim does your chance of winning an infringement suit have to be before it's not 'good faith' anymore? And how exactly does one demonstrate malicious intent against the "I didn't know/realise/think it was fair use" defense? It all seems sufficiently fuzzy to not be a barrier to the slew of takedowns - until this case or a similar one results in a serious smackdown, probably.

         

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      Anonymous Coward, Aug 21st, 2008 @ 10:38am

      Re: What the law actually meant

      Im also a little fuzzy on whether the DMCA has a specific "fair use" exemption in it?

       

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    Anonymous Coward, Aug 21st, 2008 @ 10:50am

    The DMCA already requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice; indeed, it would be impossible to meet any of the requirements of Section 512(c) without doing so. A consideration of the applicability of the fair use doctrine simply is part of that initial review.

    Fair use aside, this may be what comes back and bites Universal, and other litigators like the RIAA. From what I understand, the copyright holders are often not even making a cursory examination of the actual infringement. Legally they're required to, but isn't it a known fact that DMCA notices are being sent out with nothing more than a web-spider flagging a keyword in a filename?

     

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    Pangolin (profile), Aug 21st, 2008 @ 10:58am

    Changes nothing...

    Even if this makes it far enough to be considered the law of the land, the "review" and "consideration of fair use" is still in the hands of the copyright holder and the issuer of the DMCA take down notice. Therefore - all they have to say is "we considered it and decided it wasn't fair use". Even if it is - and there is still no appeal of the takedown notice and still no way to get the content back online.

     

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    Michial, Aug 21st, 2008 @ 11:12am

    Clear as mud

    '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 last three words of that statement are what makes it a requirement that the copyright holder consider fair user before sending the DMCA notice.

    If the law allows for certain uses of the material, then those uses need to be considered before the DMCA is issued. If they are hiring a lawyer to send the DMCA take-down notices then the lawyer should be responsible enough to consisider the fair use of the material before sending the notice.

    No damages will be awarded because no damages were done by the video being taken off line.

     

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    Anonymous Coward, Aug 21st, 2008 @ 12:40pm

    Sorry, but fair use does not have to be taken into account before filing a takedown notice.

    Nowhere in any other legal procedure does anything necessarily have to be taken into account before suing.

    Do I need to take into account whether or not a person was drunk when they hit me before suing them? No - they hit me, so I sue. I claim anything I want about why they hit me. It is then up to me to demonstrate my claims (burden of proof) and up to the defense to demonstrate otherwise.

    DCMA takedowns are no different - copyright holders can lay claim to anything they want. But again, the burden of proof is on them. The problem is that there is very little counter-suits against such claims or any penalities for misplaced and ill-conceived lawsuits.

    In effect, fair use IS a defense. However, it is a legitimate defense and one that should not be minimized. However, if the defense sticks, then those being sued are eligible to counter-sue, not for a false or misleading lawsuit, but for court costs, loss of work, etc etc

     

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      Adam, Aug 21st, 2008 @ 1:40pm

      Re:

      Curious: do you believe fair use is a right, or is not a right?

       

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      Josh, Aug 21st, 2008 @ 1:51pm

      Re:

      Coward #11, your analogy is flawed. Hitting someone (assault) is illegal whether or not you are drunk.

      Fair use is the law. Fair use is not "a defense" as RIAA claims, but it is written into the law, and upheld by the courts.

      Universal's, or more properly RIAA's, approach seems to be a "sue everyone and let the courts decide" campaign, which both overworks the courts and drags innocents unable to defend themselves with lawyers and other court costs.

       

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      Anonymous Coward, Aug 23rd, 2008 @ 9:08am

      Re:

      Sorry, but fair use does not have to be taken into account before filing a takedown notice.

      Nowhere in any other legal procedure does anything necessarily have to be taken into account before suing.
      Irrelevant. The issuance of a DMCA takedown notice is not the same as the filing of a lawsuit.

      DCMA takedowns are no different...
      Yes, they are, in many ways. For one, DMCA takedown notices require the copyright holder to swear that the use is not is not authorized by the law. That requirement does not exist to file a lawsuit.

       

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    Anon2, Aug 21st, 2008 @ 12:53pm

    due diligence

    What this decision will require, if it stands, is that copyright holders document that they've conducted the 512(c) review, including an analysis of whether the alleged infringement nevertheless constitutes fair use. Simply saying "we considered it and decided it wasn't fair use" will not be good enough, though it will take future cases to decide what will be good enough. In addition, this entire issue will really only come to a head in those cases where it is very clearly a fair use -- and as this blog frequently reports, there is little clarity on that issue.

    What cases like this may accomplish, however, is to increase the costs of issuing DMCA takedown notices by requiring a real review and analysis before sending out the notices, and that in turn might cause some of these companies to put the brakes on a bit.

    But, for the reasons the original post notes (that it's still very much an open question whether this decision is correct as a matter of law), it will take more than this one district court opinion before companies change the way they are doing things. At the very least, a couple more just like this one, and more ideally one or more circuit courts endorsing the concept.

     

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    Anonymous Coward, Aug 21st, 2008 @ 1:06pm

    yadda yadda

    # 11,

    Are you a lawyer ?
    I didn't think so .....

    Sure, you can sue for anything you want ...... But as you may recall, the DMCA has a requirement that the person requesting the takedown "certifies" that the target is indeed infringing.
    Do not confuse a lawsuit and the DMCA.

     

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      Anonymous Coward, Aug 21st, 2008 @ 1:36pm

      Re: yadda yadda

      And more importantly, it has a clause that allows you to claim damages against an erroneous DMCA takedown. So yes, you can send them using whatever rational you like - you just have to take the consequences of doing so.

       

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


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