Should Copyright Holders Pay For Bogus DMCA Takedowns?
from the seems-reasonable,-doesn't-it? dept
A few years ago, you may recall that Universal Music issued a takedown for a 29-second video involving a little kid dancing to a Prince song playing on the radio in the background. While the woman issued a counternotice and had the video put back online, the EFF sued Universal Music, claiming that it had filed a false DMCA takedown, since it did not take fair use into account. Universal Music tried to claim that it it shouldn’t have to consider fair use, since fair use is just a defense, not a right. While the court eventually did (much to many people’s surprise) say that copyright holders do need to take fair use into account, it’s not really clear what sort of punishment there is for those who do not. In fact, we’ve seen that it’s quite difficult to get any actual punishment for those who file bogus DMCA takedowns.
With that in mind, it’s interesting to see that the EFF is now trying to recover its legal fees in the case, claiming that Universal’s actions violated section (f) of the DMCA, and thus it should be liable for attorneys fees. Universal claims that there is already a “remedy,” which is the counternotice process. But if that were the only remedy, then why does the law allow for legal fee recovery. Furthermore, if the only remedy is a counternotice process, there is nothing to really stop the filing of bogus DMCA notices, since there is no punishment for such activity.
In the linked article, Bennett Haselton argues that paying legal fees like this might not actually make sense, and worries about the legitimate content holder who accidentally files an incorrect DMCA getting hit with a big legal bill. But, again, I’m not sure how that applies. Shouldn’t we be just as worried about the completely innocent individual hit with a DMCA takedown and the process they need to go through to get their legal content back online? Given how massive the damage awards can be for simple (even incidental or accidental) copyright infringement, the fact that there is barely any real punishment for bogus copyright claims seems incredibly one-sided and unfair.
Filed Under: dmca, eff, legal fees, prince
Companies: universal music
Comments on “Should Copyright Holders Pay For Bogus DMCA Takedowns?”
Yes.
[He] worries about the legitimate content holder who accidentally files an incorrect DMCA getting hit with a big legal bill.
People go to court with legitimate concerns all the time. If they lose, they have to pay the defendant’s legal fees. Thus, the legitimacy of the claim doesn’t matter. I have even less sympathy for someone who ‘accidentally’ begins a legal process.
I also believe that the award should include punitive damages. If it just includes damages and attorney’s fees, what’s the incentive to not issue the takedown? In alot of these cases, the takedowns have nothing to do with copyright, and everything to do with stifling speech or newsworthy content.
Alot of people and companies would be perfectly willing to shell out a few grand if it means the video will be taken down for a few weeks, and not put back up until all of the fuss is over with.
Re: Yes.
If you accidentally sue someone, are you still responsible for their attorneys fees? Yes.
I’m completely confused as to how anyone (company or individual) could “accidentally” file an incorrect DMCA notice.
As you said Mike, “fair use” is a defense, nothing more. The DMCAs are valid on their face, less whatever defense is mounted. Fair use would be something settled in court, not an absolute term.
EFF doesn’t appear to have a legal leg to stand on with this one.
Re: Re:
“While the court eventually did (much to many people’s surprise) say that copyright holders do need to take fair use into account,”
I know, I know, you don’t read anything but the title.
Re: Re: Re:
The MJ thing is a great example. At 29 seconds, is it fair use? Think about it, take away the music and suddenly the video means nothing. There is little “fair use” in the game here.
DMCA has no specific requirements to account for any fair use, and there is little to show that any notification was given specifically in bad faith. If the copyright holder feels that they COULD win in court, that should be enough.
There are no absolutes, except on techdirt.
Re: Re: Re: Re:
Or, except in the court ruling stating that fair use needs to be taken into account when filing DMCA notices, which you ignore (again).
Re: Re: Re: Re:
Why should the DMCA mention fair use explicitly? It requires that notices be sent only for valid cases of infringement, and fair uses are not infringing. Ergo, DMCA notices should consider fair use insofar as clear cases of fair use are not infringing. If the line is fuzzy and the copyright holder feels they can win in court, by all means they should file away … but they need to actually be prepared to fight it out in court should the target of the notice disagree. And that means being liable for court costs (at a minimum) IF they lose.
On a separate note, fair use has nothing to do with how integral the original work was to the derivative work. It has to do with whether the creation of the derivative was done fairly, i.e. for purposes such as education, research, parody, or criticism. Even fully copying a work may be fair use if it is done for the right reasons.
Re: Re: Re: Law
> DMCA has no specific requirements to account for any fair use
But now we have case law that says that rights holders *do* have to account for fair use.
See how that works?
Re: Re: Re: Re:
That’s not the correct analysis for fair use. At the very least, have a look at the statute: http://www.copyright.gov/title17/92chap1.html#107
The DMCA is part of copyright law, and fair use affects all of copyright law. The DMCA provision at issue in this case was section 512, which is in the chapter of copyright law entitled “Copyright Infringement and Remedies.” http://www.copyright.gov/title17/92chap5.html
Re: Re: Re: Re:
Or, insert any other clip of music, and it would still be hilarious. So the clip of Prince is just as ‘meaningless’ as the entire rest of the video.
Re: Re:
In the real world, if you haul someone into court and cause them legal fees, and lose, you pay those fees. It doesn’t matter how legitimate your complaint was.
Re: Re:
Do you really think it’s fair that rightholders can swan around getting other peoples work taken off line whilst taking absolutely no risk if they get thing wrong – or even if they do it maliciously?
Or do you just oppose everything that Mike says on principle?
Re: Re: Re:
Ha! Principle is a funny word to use when talking about TAM.
Re: Re: Re: Re:
I had this thought yesterday, that if you wanted to really build a fanbase of very dedicated fans for a website, then you should employ one or two people who always takes on a contradicting opinion to whatever is being said in the site.
That way you create lots of drama and a feeling among the followers that they need to help defend the site from its enemies.
And then I thought.. Oh wait… what about The Anti Mike? Is this a guy working for Mike tasked with always creating an opposition?
Re: Re: Re:2 Re:
“And then I thought.. Oh wait… what about The Anti Mike? Is this a guy working for Mike tasked with always creating an opposition?”
Nah
Mike would have hired someone better..
Re: Re: Re:
His nick is The Anti-Mike. What do you think?
Re: Re:
Hello Igtor! Your skilled misunderstanding and misquotations skills are serving you well today.
Have you arrived in Siberia yet? I hear it’s nice this time of year.
fair use
So playing devil’s advocate, how is a company to know what is fair use when it’s such an elusive thing to pin down and they have these massive bot nets scanning the net for any use of their media?
Re: fair use
it’s called human judgment… something sadly lacking in most takedown notices. 2 cents worth
Re: fair use
They don’t know when it’s fair use. But, the RIAA has plenty of fish to choose from. It shouldn’t be hard to be just a *little* cautious and only go after the cases that are clearly *not* fair use.
Re: fair use
“how is a company to know what is fair use when it’s such an elusive thing to pin down and they have these massive bot nets scanning the net for any use of their media?”
This is one of the best arguments against 3 strikes laws, ACTA, and pretty much any attempt at enforcing copyright in an open communications medium such as the internet.
Authorized use and fair use, how is anyone (ISP or hosting provider or internet user or content holder) to know which it is?
Nope, try again
“As you said Mike, “fair use” is a defense, nothing more. The DMCAs are valid on their face, less whatever defense is mounted. Fair use would be something settled in court, not an absolute term.
EFF doesn’t appear to have a legal leg to stand on with this one.”
Pity the court disagrees with you. Maybe you should RTFA?
Shill.
Re: Nope, try again
Be nice! He only reads the titles.
Re: Nope, try again
RD, I did RTFA, and I think the judge has it wrong. Rights holders should be able to issue a DMCA when they feel it is likely that they are being infringed, without having to have total and complete certainty against fair use and other potential exceptions. Fair use is a defensive claim, nothing more.
What the judge is suggestion is to place an even heavier burden on the rights holders to be 100% certain in all cases, which would effectively widen fair use dramatically by making anything marginal, anything that would be decided in court, anything at all as “not 100% certain”, and then not worth issuing a DMCA about, which in turn means giving up that area of discussion.
I know it matches up to your personal desires, but it is legally a one sided concept that would greatly expand user rights and greatly limit right holders rights. That isn’t what the law states, so I think the judge is out of line.
Re: Re: Nope, try again
” and I think the judge has it wrong”
But as you’re NOT a judge, and merely an industry shill, it really doesn’t matter what YOU think. Until a higher court rules otherwise, the law says the copyright holder must take fair use into account (or in plain English, innocent until proven guilty)
Re: Re: Nope, try again
Yeah, the right to free speech is actually not a right, just a defense you use AFTER your free speech is violated.
And, no, they don’t have to be “100% certain.” They just have to be reasonably certain of their claim, but be prepared to pay up if they’re wrong…like…in plenty of other non-DMCA cases.
But I know, you’d prefer to live in the Anti-Mike Fantasy World where EVERYTHING is either 0% or 100%.
Re: Re: Re: Nope, try again
You miss the point.
If the DMCA’ing person / company is wrong, they are typically a deep pocket defendant that can pay. If they are correct, what do they get besides a warm feeling and an uncollectable judgement?
It is unfair because it is entirely one sided.
Re: Re: Re:2 Nope, try again
Please explain why free speech is more than just a defense. Oh, right, you can’t.
Please explain how a system that allows a rights holder to get any content anywhere taken down simply by telling its host to remove it, with no penalty for being wrong is “one sided.”
Oh, wait, I agree, it’s one-sided for the DMCA-issuer. Oops.
Re: Re: Re:3 Nope, try again
Free speech isn’t the issue, but thanks for trying to confuse things.
As for the rest of your post, all I can say is that you appear to have never creating anything worth protecting. If you could get out of mom’s basement for a minute and look at the other side of the issue, you would be less likely to have such a smug answer.
Re: Re: Re:4 Nope, try again
Thank you for admitting that you can’t defend your points without dodging questions or resorting to whiny insults.
Re: Re: Re:2 Nope, try again
Who the defendant is in a case should have no bearing on their liability.
What we have seen is a great abuse of the DMCA takedown process by those issuing the takedowns. They are often being used to stifle free speech or silence something a content creates simply does not like. I agree that not every case of this should result in the person who issued the takedown being forced to pay legal fees, but the court should be able to decide on a case-by-case basis if the action was inappropriate – and then make them pay the legal fees in those cases.
If you can come up with a better way to reduce the number of inappropriate takedowns (and let’s face it, there seem to be a lot of them lately), let’s open the discussion now.
Re: Re: Nope, try again
“I think the judge has it wrong. Rights holders should be able to issue a DMCA when they feel it is likely that they are being infringed, without having to have total and complete certainty against fair use and other potential exceptions. Fair use is a defensive claim, nothing more.”
And while I agree with that sentiment, if they don’t actually PROVE ownership of copyright, then they should be punished to the full extent of the law.
Moreover, fair use is nothing less than a defense. If you attribute it correctly, then the DMCA should cover it; it is a transformative work, based on a derivation from an earlier work.
“I know it matches up to your personal desires, but it is legally a one sided concept that would greatly expand user rights and greatly limit right holders rights. That isn’t what the law states, so I think the judge is out of line.”
Then what is a judge for? Ornamentation? These people set down case law. The DMCA is one-sided – remember how the saqfe-harbors clause had to be added before it was ratified and signed in?
Re: Re: Nope, try again
“What the judge is suggestion is to place an even heavier burden on the rights holders to be 100% certain in all cases, which would effectively widen fair use dramatically by making anything marginal, anything that would be decided in court, anything at all as “not 100% certain”, and then not worth issuing a DMCA about, which in turn means giving up that area of discussion.“
GOOD! That is the way is should be.
Burden of proof should be on th copyright holder
If the burden of proof was on the copyright holder, then a lot of the problems of copyright would go away. Most of the borderline cases do no damage to the copyright holder, and they often give a boost to the original product. Most of the borderline cases are filed as a result of overzealous lawyers. If there was actually a penalty to be faced in those cases, the legal system would be unburdened of a lot of these small cases, and copyright holders would not be damaged.
Cost for loss of use.
In cases similar to this but where a DMCA notice causes someone to not be able to use their own copyrighted materials this should be considered copyright infringement. Meaning not only should use where you don’t have the necessary rights be infringement, but also preventing someone’s use where they do have the necessary rights to. After all, the damage is quite obvious – especially if they are used in a commercial venture.
Copyleft.
I want to see the industry start suing people who use copyleft material in their YouTube videos that would be fun.
not even
“Be nice! He only reads the titles.”
Not even, he simply uses one guideline: is it written by Mike? If so, take opposite viewpoint regardless of merit. End.
Re: not even
Well, yes, but he bases the viewpoint he has to oppose on the title.
Re: not even
hence the name.
Re: not even
I have seen at least one case that I can recall where he was bashing the article and it wasn’t even written by Mike. I think it was one of Derek’s articles.
Or was that still when he never typed in his name or had the profile? It might have been when he was still going by Anonymous Coward.
not even
by RD
“Be nice! He only reads the titles.”
Not even, he simply uses one guideline: is it written by Mike? If so, take opposite viewpoint regardless of merit. End.
Thus my name-calling rant in another thread. Please stop feeding this registered troll. He’ll soon leave…
Should Copyright Holders Pay For Bogus DMCA Takedowns?
Yes
Copyfraud is a crime!
False copyright again
Source here.
Source here.
Source here.
Google do nothing against copyfraud (Source here.
Misuse of Copyright Defense (Lasercomb America Inc. v. Reynolds) Source here
U.S. Copyright Act:
– Section 506(c) criminalizes fraudulent uses of copyright notices
– Section 506(e) punishes knowingly making a false representation of a material fact in the application for copyright registration
– Section 512(f) additionally punishes using the safe harbor provisions of the Digital Millennium Copyright Act to remove material the issuer knows is not infringing.
Source here.
It is under “Chapter 5: Copyright Infringement and Remedies”
And apparently the EFF have a strong case if the law is to be correctly interpreted.
Copyfraud is a crime!
This could be a gold mine for some smart lawyers that instead of defending the industry may choose to go after the industry big fat pockets that pay better in successful litigations 🙂
Even though the U.S. copyright ACT is not used by the government to pursue copyfraudsters it may be used to recoup damages by lawyers and that could be profitable.
explanation might be simpler
Maybe it’s just a matter of the lawyers making the determination. And they say, “We get paid to file it. If it comes back at us, we get paid to defend the filing. If it really bites us in the ass, we’ll say we did everything we could, and still get paid. Win, win, win.”
Youtube
Under the law even youtube could get some out of it if they can prove that it cost them money LoL
Tough SHIT
“RD, I did RTFA, and I think the judge has it wrong.”
Well la-de-FRICKIN-da. In the immortal words of Luther from 48 Hours – who gives a SHIT what you think! Your hypocrisy knows no bounds. You can say that with a straight face when you have REPEATEDLY said in other posts “the law is the law, and must be followed utterly.” Now, when its convenient for your argument, and contrary to Mike and everyone else, suddenly its OK to have a fucking OPINION about what a judge (and the law) says. So not only do you reverse yourself when it suits you (hypocrisy), you must be lying to start with about these views.
“What the judge is suggestion is to place an even heavier burden on the rights holders to be 100% certain in all cases, which would effectively widen fair use dramatically by making anything marginal, anything that would be decided in court, anything at all as “not 100% certain”, and then not worth issuing a DMCA about, which in turn means giving up that area of discussion.”
Listen, sparky. Let me clue you in to a little think in the law and litigation called the “burden of proof.” This rests with the PROSECUTION. The “burden” is ALREADY on the rights holders. They have to PROVE HARM (law being broken) or there is no case. Regardless of how much (or little) “fair use” must be taken into account BEFORE filing a takedown, they are STILL under this burden.
“I know it matches up to your personal desires, but it is legally a one sided concept that would greatly expand user rights and greatly limit right holders rights. That isn’t what the law states, so I think the judge is out of line.”
Funny, we say that all the time and you invalidate it EVERY TIME by stating its the law, and too bad that things arent the way we THINK they SHOULD be.
Hypocrite troll shill. You own-goal your own arguments and invalidate them every time you open your mouth.
oh, RIGHT!
“Yeah, the right to free speech is actually not a right, just a defense you use AFTER your free speech is violated.”
Oh right! Like how does NOT say “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. “
It also most certainly is not in anything called “the Bill of RIGHTS.”
Where the hell do you people come from? You’d sell our country right down the river if you could without so much as a “by your leave” and probably THANK those who destroy it on the way out.
Re: oh, RIGHT!
Your sarcasm detector is very very broken.
Nope, try again ...again
“Free speech isn’t the issue, but thanks for trying to confuse things.”
Wasnt talking to you, it was an AC that said that. Thanks for, once again, not debating the point at all, but instead attacking another part that has nothing to do with the original argument.
“As for the rest of your post, all I can say is that you appear to have never creating anything worth protecting. If you could get out of mom’s basement for a minute and look at the other side of the issue, you would be less likely to have such a smug answer.”
More than you, I guarantee it. You dont know what I have done, but I can promise, its worth “protecting” more than anything you have ever accomplished. I STILL think copyright is overbroad, protects the few at the expense of the public good, and is generally broken and wielded like a nuclear arsenal. And I havent been in moms basement since she died when I was 16, so FUCK YOU.
I’ll reserve the right to a smug answer until you decide to actually debate the points, instead of dodging them with meaningless arguments about things you know nothing about.
Re: Nope, try again ...again
You may want to turn on threaded comments so you stop making yourself look silly.
Fare Use
I completely agree with the majority of the comments and add an additional tidbit of information. I also believe with any organization being federal, state, corporate, private, etc. that if a failure to prove your case at minimal they receive reimbursement of legal fees. Yes, I am saying every time even the state or government tries a person and there action are unsuccessful they must at a minimal repay legal feed. This is the only way I can think of to equal the playing field.
Fare Use
I completely agree with the majority of the comments and add an additional tidbit of information. I also believe with any organization being federal, state, corporate, private, etc. that if a failure to prove your case at minimal they receive reimbursement of legal fees. Yes, I am saying every time even the state or government tries a person and there action are unsuccessful they must at a minimal repay legal feed. This is the only way I can think of to equal the playing field.
Re: Fare Use
I agree, but I also think that there should be damages and punitive damages. If it just includes damages and attorney’s fees, what’s the incentive to not issue the takedown? In alot of these cases, the takedowns have nothing to do with copyright, and everything to do with stifling speech or newsworthy content.
Alot of people and companies would be perfectly willing to shell out a few grand if it means the video will be taken down for a few weeks, and not put back up until all of the fuss is over with.
Is there anything associated with patent and copyright law that this site does not believe to be “bogus”?
Re: Re:
Yawn. Troll better.
Re: Re:
This site doesn’t have any beliefs, because this site isn’t a sentient being.
Fair use
Fair use is a right and should require a Judge’s order to remove the content.
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