We just wrote about how major Hollywood studios had included links to the freely available, Creative Commons-licensed documentary, TPB AFK, in a bunch of bogus DMCA notices to Google, meaning that perfectly legitimate links were likely being removed. The director of that film, Simon Klose, has now responded with an open letter in the form of a video, where he notes that this is a clear violation of his free speech. He points out that there are basically two possibilities. First, that these studios are purposely trying to censor a film about The Pirate Bay, which highlights the civil liberties questions raised by the studios legal pursuit of the founders of the site, and second, that their technology for finding infringing content absolutely sucks. He points out that neither of these situations is a good one. The first one sounds crazy, but, as he notes, not quite as crazy as some of the things that were revealed in the film, such as Warner Bros. hiring the lead investigator in the case while the investigation was still ongoing. But even if it was an accident, that doesn't change the fact that his legitimate content was being blocked from Google, and he considers it a free speech issue.

We see so many bogus DMCA takedowns, and we hear the big copyright holders insisting that it's just an accident each and every time -- and not to worry about the collateral damage and censorship it leads to. So it seems interesting that TorrentFreak has uncovered a series of bogus DMCA takedown notices to Google from four different giant Hollywood players -- Viacom, Paramount (owned by Viacom), Fox and Lionsgate -- that each ask it to remove links to Simon Klose's excellent documentary about The Pirate Bay TPB AFK. As TorrentFreak notes, Fox, via DtecNet (another total failure for the "six strikes" company), asked Google to remove a link to the movie on Mechodownload. Viacom asked for links to be removed to the movie on Mrworldpremiere and Rapidmovies. Lionsgate asked for to remove a link to the movie from The Pirate Bay of all places. Needless to say, all of these were authorized copies that the movie studios were seeking to have hidden.

Beyond the obvious concern about censoring a movie that shows, perhaps, a more sympathetic side of the TPB crew and their legal situation, these kinds of take downs serve another, more nefarious purpose: making sure there is less value for authorized works on these various sites. You hear it all the time from these companies that these sites are "all bad" and must be taken down. Having authorized content really looks bad, so it's nice for them that they can remove it by filing bogus DMCA claims with no real recourse. No wonder the MPAA is so vehement that it shouldn't need to consider fair use before sending bogus takedowns.

Yes, I'm sure these were all just more "accidents" but the impact is very real. For struggling filmmakers like Klose, having authorized copies of his film removed from Google has a serious impact. Copyright maximalists never seem concerned in the slightest about the collateral damage on the people who have actually learned to use these platforms well. They prefer to protect those who fight against new systems of distribution, while harming those who have succeeded in using them.

Oh, there go the wacky lawyers at the MPAA again. Last week we noted that a key fight may be shaping up concerning the contours of Section 512(f) of the DMCA -- the clause that is supposed to allow people to fight back against bogus DMCA takedowns. The details of the fight itself are pretty silly -- basically two angry bloggers fighting with each other -- but the underlying legal issue is of critical importance. As we've noted, to date, 512(f) has been rendered almost entirely toothless, such that tons of completely bogus DMCA notices are filed all the time, stifling free speech. Here was a case that might actually allow a 512(f) win, and provide some further basis for future responses to abusive DMCA takedowns.

Is it really any surprise that the MPAA suddenly took notice of the case after the EFF filed an amicus brief? The MPAA had to step in and argue why it should be allowed to continued to file millions of DMCA takedowns without having to be that careful about bogus takedowns, because actually having to make sure a work is infringing would be too much work. So, the MPAA basically says, "we should be allowed to stifle free speech with no consequence because OMG PIRACY@!@!!" Yes, that's a paraphrase, but that's the crux of the MPAA's argument.

The MPAA respectfully submits that such an interpretation of § 512(f) is wrong and threatens to cause significant harms that Congress could not possibly have intended. The MPAA's interest in this matter is not academic. The MPAA and its members confront the piracy of their works by Internet actors on a massive global scale. One of the only means that the MPAA and its members have to ensure that Internet services that carry, host, or link to such content take steps not to facilitate such rampant piracy is through the DMCA's notice-and-takedown provisions. The rule that Plaintiff and Amici advocate, if carried to its logical conclusion, would impose significant and unwarranted burdens on copyright owners like the MPAA and its members who unfortunately must send literally millions of takedown notices every year to combat the mass infringement of their works on the Internet.

That's both wrong and ridiculous. It's not an "unwarranted burden" to ask DMCA filers to actually check to make sure a file is infringing. It's the whole freaking point. What's really going on here is that the MPAA is finally realizing that its now-common practice of hiring companies like DtecNet to send automated takedowns might run afoul of 512(f) because the computer programs aren't taking into account things like fair use.

So, the basic point that the MPAA is making is silly and wrong.

They're also flat out wrong on the law. The issue here, once again, is that the MPAA insists that fair use is only an "affirmative defense," and thus it has no reason to consider it before filing a DMCA takedown.

Fair use is an affirmative defense. It excuses conduct that otherwise is actionable as infringement, as the Supreme Court, the First Circuit, and numerous other courts and the Copyright Act’s legislative history have made clear.

But that is not what the law actually says. It does not say that it "excuses conduct that otherwise is actionable as infringement." Section 107 of the Copyright Act says:

... the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

This is important. The law does not say that this it is an infringement, but "excused." It says it is not an infringement. If it's not an infringement, then it means that the use is authorized. And that's the key to the whole issue here, because 512(f) says you can be liable for damages if you misrepresent "that material or activity is infringing." Infringing. Again, fair use is not infringing. So if it is a clear case of fair use (and we agree that not all cases of fair use are clear), then not considering fair use whereby one would recognize that the use is authorized, and still filing the DMCA takedown, would be a misrepresentation that the work is infringing.

This isn't just me making this up. It's what the court said in the Stephanie Lenz case as well:

Here, the Court concludes that the plain meaning of “authorized by law” is unambiguous. An activity or behavior “authorized by law” is one permitted by law or not contrary to law. Though Congress did not expressly mention the fair use doctrine in the DMCA, the Copyright Act provides explicitly that “the fair use of a copyrighted work . . . is not an infringement of copyright.” 17 U.S.C. § 107. 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. 17 U.S.C. § 512(c)(3)(A)(v). An allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim pursuant to Section 512(f) of the DMCA. Such an interpretation of the DMCA furthers both the purposes of the DMCA itself and copyright law in general. In enacting the DMCA, Congress noted that the “provisions in the bill balance the need for rapid response to potential infringement with the end-users [sic] legitimate interests in not having material removed without recourse.”

The MPAA's desired interpretation of 512(f) is basically an attempt to reject the Lenz ruling entirely... and, more importantly, to make sure that almost no case could ever qualify for 512(f) damages. Which is exactly what they want: to be able to brush off all of the bogus DMCA notices they send without ever having to fear reprisal for stifling someone's speech.

I guess this is one more to add to the pile of evidence showing how absolutely ridiculous it is when the MPAA pretends it's a defender of fair use. A defender of fair use wouldn't support an interpretation of 512(f) that basically allows for DMCA takedowns on clearly fair use situations. And yet that's exactly what the MPAA is arguing for here.

Anurag Ghosh is a blogger who would like to have some infringing posts removed from the web. See if you can spot the point when Ghosh's irony detector malfunctions.

Copyright claim #0:

My article, “How to Play Nintendo DS Games on Android”, is infringed by the text excerpted on the site, beginning with the text: “Did you know that your Android device can play NDS games? With the help of an emulator (yes there is a free, open-source DS emulator out there on Google Play), you can play games like Phoenix Wright, Dragon Quest IX and Touch Detective on your phone.”

Original work URL(s):

http://anurag2008.hubpages.com/hub/How-to-Play-Nintendo-DS-Games-on-Android

To paraphrase: "Yeah, it looks like some people have infringed my post about infringing, so if you could do me a solid and take those out, that would be great.

Ghosh's post, titled "How to Play Nintendo Games on your Android," does exactly what it says on the tin, pointing readers toward a free, open-source emulator, providing instructions on installing an NDS BIOS and directing readers towards Google to search for .nds ROMs. Ghosh has thoughtfully included the following "warning" on his post.

Downloading ROMs and BIOS files is illegal. I don’t support piracy and this guide is only for entertainment purpose. Reader discretion is advised.

The discussion about whether emulation = infringement can wait for another day, but I'm very definitely sure Nintendo considers emulation of current gen hardware/software to be infringing. In fact, Nintendo seems to get a bit irate about it when "questioned" about it, according to its extensive FAQ on emulation.

How Does Nintendo Feel About the Emergence of Video Game Emulators?

The introduction of emulators created to play illegally copied Nintendo software represents the greatest threat to date to the intellectual property rights of video game developers. As is the case with any business or industry, when its products become available for free, the revenue stream supporting that industry is threatened. Such emulators have the potential to significantly damage a worldwide entertainment software industry which generates over $15 billion annually, and tens of thousands of jobs.

How Come Nintendo Does Not Take Steps Towards Legitimizing Nintendo Emulators?

Emulators developed to play illegally copied Nintendo software promote piracy. That's like asking why doesn't Nintendo legitimize piracy. It doesn't make any business sense. It's that simple and not open to debate.

Wow. Testy. Ghosh knows it, too. Hence the disclaimer.

Now, Ghosh may have a legitimate claim that his post is being scraped (or reposted) without his consent, but complaining about infringers infringing your post about infringement is more than a little like sending an official notice informing Google that listed kettles are black and infringing on your original pot's blackness. Perhaps the offending scrapers could just put up a little "warning" stating they copied Ghosh's post for "entertainment purposes only." It certainly entertained me.

You may remember that, back in January, we wrote about a blog fight between two women with very different views on childbirth, which then descended into a ridiculous copyright fight. I won't rehash all of the details, but the short version was that as a part of this fight, Gina Crosley-Corcoran posted a photo of herself giving the middle finger, and in posting it she told her rival, Dr. Amy Tuteur, it was "something you can take back to your blog and obsess over." Tuteur reposted the photo to her own blog, along with a blog post about Crosley-Corcoran. Crosley-Corcoran then yelled copyright infringement, at which point Tuteur's husband (a lawyer) explained to Crosley-Corcoran's lawyer what fair use meant (and also what an implied license is). And then... DMCA takedown notices started flying, leading Tuteur to change her web host twice. Furthermore, Crosley-Corcoran bragged about using the DMCA takedowns to silence Tuteur and get her blog taken down -- and (according to Tuteur's lawyer) Crosley-Corcoran's own lawyer admitted that she had no legitimate copyright claim.

As we noted in our post, if there ever were a case to explore the punishment for violating the DMCA, this seemed like a good one. The key to this, of course, is 512(f) of the DMCA, which says that if you make a material misrepresentation in a DMCA takedown, you can be liable for damages, including costs and attorney's fees. However, at the same time, we noted why it's almost impossible to get someone punished for a bogus DMCA takedown. Still... the evidence on this case seemed so extreme, with Crosley-Corcoran more or less telling the world that she was abusing the DMCA specifically to silence Tuteur, we thought it actually had a chance.

But then, a month ago, the judge in the district court in Massachusetts made a bizarre ruling rejecting the 512(f) claim in such a way that suggested no 512(f) claim would likely ever survive. It was bizarre in a few different ways. As Eric Goldman noted in his discussion of the ruling, the court was only supposed to be looking at a separate issue, involving the jurisdiction of the court over the case, but simply chose to go ahead and effectively rule on the key parts of the case, even though neither party had briefed the key issues. Among other things, the court focuses just on the first DMCA notice, and not the subsequent ones or the blatant statements of plans to keep using the DMCA to keep Tuteur's entire blog offline. Goldman calls it "the most bizarre Article III analysis I've seen" because even though the court says that Tuteur has a plausible fair use and implied license claim, that doesn't matter, because the court argues that the DMCA filer doesn't need to pay attention to that:

there is no requirement in the DMCA that a notice-giver inform the service provider of an infringer's possible affirmative defenses, only that she affirm her good faith belief (as appears to be the case here) that the copyrighted material is being used without her (or her agent's) permission

That's not actually what the law says. And it's not actually what other courts that have ruled on this issue have said. At the very least, the court, recognizing that no briefs had been filed on the subject, gave Tuteur 21 days to respond. She did so with a long and detailed filing that reminds the court that this isn't about just that one DMCA filing, but a lot more. And also highlighting that (a) the DMCA isn't limited to just cases where things are posted without permission and (b) the other cases have said that a filer needs to take fair use into account. As her filing notes:

If fair use and license can be ignored when filing a DMCA takedown notice, persons like the Defendant (and, indeed, far more powerful organizations), would have a safe haven to freely muzzle their critics by literally chasing them off the Internet. A victim – who did nothing unlawful and whose acts were authorized by the Copyright Act – would be left without recourse and without a voice.

On the same day, the EFF along with Harvard's Digital Media Law Project also filed an amicus brief explaining why the court is simply wrong about the DMCA abuse clause. After listing out four different cases that came to a different conclusion than the judge in this case, it notes:

The DMCA requires the copyright owner issuing a takedown notice to affirm that she has 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.” 17 U.S.C. § 512(c)(3)(A)(v) (emphasis added). “The fair use of a copyrighted work . . . is not an infringement of copyright,” 17 U.S.C. § 107. An allegation that a copyright owner issued a takedown notice knowing that the use in question was in fact authorized by law, and/or that she had not formed a good faith belief to the contrary is, therefore, sufficient to state a claim under Section 512(f).

This is the fundamental mistake that the court made. The DMCA doesn't say that you can only be punished if the you didn't have permission -- but if the use is not authorized by the law. And, the law clearly states that fair use is not infringement. Thus, fair use is authorized use even if it doesn't involve permission.

Crosley-Corcoran's lawyers apparently were not at all pleased to see the EFF and the DMLP jump in on this case, and proceeded to quickly oppose the entire brief, arguing that it shouldn't be allowed in the case. The reasoning? Apparently, that Tuteur has good enough lawyers already and doesn't need any support from the likes of the EFF or Harvard:

It is rare – perhaps sadly so – that one has both the opportunity and a reason to praise the litigation skills of opposing counsel. This, then, is something of a unique opportunity. Attorney Beck, a former partner with the national law firm Foley & Lardner LLP, and Attorney Riden, a former senior counsel to Foley & Lardner, have, collectively, almost 40 years of sophisticated litigation experience. Among his many accolades, Attorney Beck is AV rated by Martindale-Hubbell, a Chambers recognized attorney, a Massachusetts Super Lawyer, a Top 100 New England attorney, and a nationally recognized authority on trade secret and non-competition law. Attorney Riden is a Massachusetts Super Lawyer, a recipient of the Best Lawyers designation, a frequently quoted legal authority, and a former appellate law clerk. They are, in short, eminently qualified to represent the interests of Plaintiff in this action and to fully brief the issues raised by this Court’s Order of April 10, 2013, requiring them to show cause why the present action should not be dismissed.

This being the case, the addition of two more legal Goliaths will do little to advance this Court’s understanding of the issues raised (which do not seem to be so complex as to cry out for the assistance of non-parties), and instead will only needlessly multiply the costs of an already overly-costly litigation. For the reasons stated herein, Defendant Gina Crosley-Corcoran respectfully requests that the non-party requests for leave to file an amicus brief be denied.

There is a legitimate argument to be made that, especially at the district court level, if an outside party filing an amicus curiae brief that is only repeating the same arguments as a party in the case, it is not appropriate. However, it does seem that the EFF/DMLP briefing does raise a few different key points than Tuteur's brief, which focuses much more on the specifics of her situation, while the amici brief covers much more generally the policy issues behind section 512(f) and more of the legal history there. It seems, especially given the court's apparent misreading of the law in its initial order, that it makes sense to include the brief.

Finally, on Thursday, Crosley-Corcoran filed her response to Tuteur's argument, in which she claims (of course) that "the court had it right the first time." Except, the law is pretty clear and this filing has it wrong. I don't really see how anyone can argue that. From there, they make two key arguments. The first is that, despite the fact that Tuteur ended up having to switch hosts twice, neither switch actually involved a host taking down the content in question, and thus she cannot claim any damage from the DMCA takedown notices, bogus or not. Specifically, the filing argues that Tuteur chose to move from the first host, BlueHost, after she sent a counternotice and after BlueHost had said it would take no action (though, this is after BlueHost had warned her earlier that if she didn't remove the content, it could close down her account). It then says that the move away from the second host, DaringHost, was because the site was getting too much traffic, and the owner of DaringHost, supplied a deposition stating that he had explained this to Tuteur.

This absolutely does weaken Tuteur's 512(f) claim, because it certainly decreases the damages caused by the takedown notices. But it still does ignore the two key points pushing back on this: Crosley-Corcoran's lawyer admitting that there was no legitimate copyright claim and Crosley-Corcoran herself bragging publicly about using the DMCA to silence Tuteur.

Separately, the filing goes back to the same point that we've discussed before about why it's so difficult to win a 512(f) case: the use of the "subjective bad faith" standard. Of course, one would think that Crosley-Corcoran's own statements would pass that bar. However, the filing insists that her lawyers took fair use into account, and simply decided that Tuteur's use didn't qualify (which seems to go against what Tuteur claims Crosley-Corcoran's lawyers told her). Crosley-Corcoran's filing conveniently ignores all of that and says, basically, "of course we considered fair use and rejected it" so the 512(f) claim is dead.

If that's allowed, then that effectively makes 512(f) a useless law, because all anyone has to say is they considered it before sending a bogus DMCA takedown and they can get away with it. That's clearly not what Congress intended with the law, otherwise why include it at all?

Either way, this case is shaping up to be a key one to watch in determining whether or not there are any teeth at all (even little ones) associated with 512(f) in providing a tool for those who have been attacked with bogus DMCA filings.

The EFF has inducted singer Prince into its "Takedown Hall of Shame" by giving the purple one the "Raspberry Beret Lifetime Aggrievement Award" for his consistent and neverending abuse of the DMCA process to take down content he has no right to takedown. In giving him the award, they list out three examples we've spoken about before:

1. Prince's recent DMCA takedown on six second clips on Vine of a Prince concert at SXSW. These clips were clearly fair use -- showing tiny snippets where the music isn't even recognizable.
2. Prince's DMCA takedowns sent over fan-recorded concert videos of his performance of Radiohead's song "Creep." As EFF points out, Prince has no real copyright claim here. The copyright of the song is Radiohead's -- and Radiohead demanded that the videos be put back online -- and the copyright on the video is whoever took the videos. But that didn't stop Prince.
3. Of course, no surprise here, Prince's connection to the infamous YouTube takedown of Stephanie Lenz's 29-second video of her toddler dancing to a Prince song in her kitchen. The lawsuit over that one is still going on. That one might actually be more about Universal Music than Prince, but given his other takedown actions, it would be surprising if he didn't support Universal on that one (even if he's had other disagreements with the label).

Of course, if the EFF wanted, it could make the list even longer. Prince sent a cease & desist to an artist who put together a puppet-based tribute to the artist. He similarly threatened a bunch of fan websites, claiming that any photos of him or his album covers was infringement. Oh, and then there was the time he sued 50 musicians for having the temerity to record a tribute album to Prince for his birthday. Such a nice guy.

Until reading up on this story, I had never heard of the Burzynski Clinic, which is a controversial "cancer treatment" clinic in Houston. It appears that the clinic has something of a history of trying to legally threaten and bully those who challenged its treatments, often with threats of libel lawsuits against critics. After the last major incident, in November of 2011, the clinic issued a press release saying that it had fired the "web optimization" expert it previously hired "to attempt to stop the dissemination of false and inaccurate information." However, the tone of the rest of the letter was still in line with the pattern of complaining about critics.

And, it appears, the clinic continues to bully critics too. The website Skeptical Humanities is claiming that Eric Merola, a filmmaker close to Burzynski who made an uncritical film about it, has been able to take down a video critical of Burzynski, and is also trying to get the author at Skeptical Humanities, Bob Blaskiewicz, kicked off Facebook. Skeptical Humanities claims that he used an "illegal DMCA takedown" to get the video taken down, but I don't think that's correct. You can look at the page where the video once was, and rather than a typical DMCA notice, instead it has a notice I hadn't seen before: "This video has been removed as a violation of YouTube's policy against spam, scams, and commercially deceptive content." That's not a DMCA (or even a content ID) issue, but rather (as it suggests) stems from complaints about the content being somehow spammy or scammy. Blaskiewicz decided to repost/mirror the video, and I don't see how anything in it qualifies as "spam, scams, and commercially deceptive content." It presents a bunch of information about why people might want to be skeptical of the Burzynski clinic, but is quite clear in laying out its evidence and suggesting people be careful and verify everything. Furthermore, Blaskiewicz notes that, last year, Merola had urged people on Facebook to report some Blaskiewicz Facebook comments as "spam" or "hate speech" with the very clear stated goal of having Facebook "knock this guy off for a while." For a company that claims to be careful about its social media presence, you'd think it could do a lot better than going after online critics.

We've seen this in the past as well, but TorrentFreak has noticed that a number of movie studios have been sending Google DMCA takedown notices that reference earlier DMCA takedown notices now appearing on ChillingEffects.org. 20th Century Fox and NBC Universal appear to be the main culprits. While it is true that those DMCA notices provide links to the original content, it seems a bit ridiculous to then argue that those notices themselves need to be taken down. ChillingEffects provides much needed transparency in how the DMCA is being used (and frequently abused) by companies. Google, thankfully, has so far refused to comply with such takedown requests. It's not clear if these are just the result of the usual robot searches by the studios (probably) or a concerted effort to hide takedown notices (less likely, but still plausible). Either way, it does highlight the ridiculousness of arguing that Google should be liable for links to sites that link to possibly infringing content. But... that's how the legacy Hollywood players view the DMCA these days. Anything, anywhere in the chain that might possibly lead one to a possibly infringing work must be liable as well, and those responsible for those sites must then, obviously, act as Hollywood's personal police force.

We just posted about Prince's NPG Records issuing DMCA takedowns on a set of Vine videos. While noting that Prince regularly seeks to shut down internet support of his work far beyond what the law allows, we also pointed out that, given the 6 second limit on Vine videos, it seemed almost certain that the videos in question would be protected as fair use and/or de minimis use. After posting that story, we heard from Zack Teibloom who, it turns out, is the person who shot and posted the Vine videos in the first place. They were taken at Prince's SXSW concert. He noted that he treated the takedowns as "cease and desist" letters and chose to take them all down. Before he did so, we were able to snag one of the videos, which we've now posted to YouTube solely for the discussion over whether or not the original takedown was an abuse of the DMCA. We believe, strongly, that NPG's takedown notice is faulty, and it's quite possible that it violated 512(f) of the DMCA in that it appears NPG knowingly misrepresented that the works were infringing. In the DMCA notice, NPG claims:

These are unauthorized recordings and are unauthorized synchronizations As such, I have a good faith belief that use of the copyrighted work described above is not authorized by the copyright owner (or by a third party who is legally entitled to do so on behalf of the copyright owner) and is not otherwise permitted by law. I hereby confirm that I believe the tracks identified in this email infringe my copyright.

However, it is incorrect that the use was not permitted by law. Under both fair use and de minimis use, such a use is clearly permitted by law. Furthermore, as a court found in the Lenz v. Universal Music Group case, the filer of a DMCA takedown needs to take fair use into account before issuing the takedown. Separately, as a bootleg video, this might not even be subject to the DMCA at all.

As per Vine's own limitation, the clip is a mere six seconds long, showing five disjointed clips of a song. If we were to do a four factors test for Teibloom's original use, it seems clear that it is fair use.

The purpose and character of the use:

The showing of brief six second, disjointed clips was clearly just to highlight that Teibloom had attended the SXSW show, and was linked from his review just to highlight the sense of what the show was like. It's clearly not a full use of the song or anything attempting to be a replacement for the song or the concert itself. It was a brief "view" of one attendee's perspective, which is clearly transformative from the original work. As such, it clearly "added value" to the original, since it was showing something different and unique from the original, while providing some perspective on the experience of attending such a show.

The nature of the copyrighted work

This was a recording of a brief bit of a live event, not of the sound recording or anything like that. Again, the point was to capture the live atmosphere and experience. This prong of the fair use test is supposed to be to protect the dissemination of information, and that seems clear from the use.

Also, even the brief bit of music that you hear is a pretty generic soul / funk music riff, rather than something highly unique and identifiable with Prince himself. I'm not even sure that the song being played is a Prince song. It sounds so generic and short it's difficult to identify. As a test, I tried to use Shazam on it, and despite claiming to be able to identify a song with as little as one second of music, it said it could not find a match. If you'd asked me I would have thought it was a just a generic James Brown-style riff rather than anything specific to Prince. Given that, while the performance is potentially covered by a copyright, it's not clear that the song is covered by Prince's copyright.

Hell, just the fact that it's unclear what the song is highlights why this is almost certainly fair use or de mininmis use. One of the characteristics of de mininimis use is if you can distinguish the work. When even the expert automated ears at Shazam can't do that...

The Amount and Substantiality of the Portion Taken

Six disjointed seconds. 'Nuff said.

The Effect of the Use Upon the Potential Market

There is clearly no negative use whatsoever. It is not as if someone will not buy or license a Prince song because this clip was "good enough" as a substitute. There is no rational way to support such a claim.

That said, it is possible that Prince's takedown actions might cause people to no longer want to support his works, but that's his own actions, not this particular video.

That's for Teibloom. As for us reposting the video and discussing it here, our use is even more transformative, as it is now about the discussion on whether or not the video itself is fair use. Without showing the video it is difficult to have a reasonable or competent discussion on whether or not it was fair use.

Either way, we believe that Prince and NPG Records are abusing the DMCA, potentially in violation of 512(f), and using the DMCA to take down perfectly legitimate videos that are allowed under US copyright law.

Art Neill, from the very cool non-profit group New Media Rights (which provides legal services/advocacy for internet users and creators), alerts us to an unfortunate story involving YouTube pulling down a band's video, claiming terms of service violations, but refusing to explain much more. We've discussed multiple times before that one of Google's Achilles Heels for competitors is its big white monolith problem, in which if you have a problem with Google, reaching an actual human being in customer service is nearly impossible. That seems to be the case with this story.

It involves a comedy group / rock band called Fortress of Attitude. A few months back, they released a video on YouTube for a song they wrote, called PS Gay Car, in response to a homophobic note that someone left on a band member's cars a few years ago. They basically took the note and turned it into the lyrics for a song, mocking the homophobic message. The video got lots of attention, including high traffic places like the Huffington Post and College Humor. The video on YouTube racked up nearly 40,000 views.

And then it was gone. You can still see it on Funny or Die, but YouTube removed it entirely, claiming a terms of service violation. YouTube sent them a note saying that they had violated the terms of service of the site by using "any automated system, including without limitations, "robots," "spiders," or "offline readers," that access the Service in a manner that sends more request messages to the YouTube servers in a given period of time than a human can reasonably produce in the same period by using a conventional online browser."

The folks at Fortress of Attitude insist they did nothing of the sort:

So, note up front: we 100% did not engage in any activity of that sort. First of all, our group policy is that robots are scary and will someday enslave us all, and therefore we do not engage in any activities involving robots—especially activities such as artificially inflating Youtube views.

Secondly it is very clear why the video had gotten its views. Popular websites posted the video, thereby putting it in front of their readerships, and it was spread around. As a group we did nothing more than email the link out to our mailing list, post it on our Facebook pages, and send it to these media outlets. Trying to create artificial views for our work is not something we would do, and it also seems like WAY too much work.

After finding no easy way to actually respond to the claimed violation, nor any way to directly contact anyone at YouTube, they went to New Media Rights who has been trying, repeatedly to contact folks at YouTube, without much luck. The emailed responses don't address any of the points raised by NMR, but rather just appear to be robotic-like responses insisting that the account was found to violate that term and saying that "due to the reasons previously stated, we will not be restoring the content." No matter how many times NMR points out that "the reasons previously stated" are not accurate, they can't seem to get anyone from YouTube to actually communicate as a human about what the problem is.

The band is especially worried since it has a bunch of videos on YouTube and the note from Google threatens to kill their entire account if similar "violations" occur.

To some extent, you can understand why Google does this. I'm sure that there are plenty of people trying to game the system and boost pageviews. And, I'm sure that plenty of them insist that they're innocent. Having full time people responding to a bunch of those folks would probably be a huge waste of time. But what happens when you have a situation where the flag and takedown happened in error?