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.

Filed Under: copyright, dmca, fair use, prince, takedown notice
Companies: eff, universal music

Reader Comments

Subscribe: RSS

View by: Time | Thread

  1. identicon
    Greg Beck, 21 Jul 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.

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here

Subscribe to the Techdirt Daily newsletter

Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Techdirt Gear
Shop Now: Techdirt Logo Gear
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Report this ad  |  Hide Techdirt ads
Recent Stories
Report this ad  |  Hide Techdirt ads


Email This

This feature is only available to registered users. Register or sign in to use it.