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.

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  1. identicon
    Jerry Lees, 21 Jul 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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