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

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  1. identicon
    JustMe, 22 Jul 2008 @ 4:24am

    No, Universal and the judge are both wrong

    You clearly DO have to take context in to account. The Universal lawyer knows the definition of 'fair use' (and I suppose, free speech) and should be able to identify same.

    A poor analogy (haven't had my coffee yet): It is illegal to drink alcohol out of doors in most locations, except on private property or restaurants with outdoor seating. A police officer sees someone with a bottle of beer. He would be right to write a ticket if the person is walking down the street. If the person is standing in the outdoor seating area of a restaurant or on the lawn of a private house then he may ask them questions, but probably not even that. This is because he sees the context of the incident.

    The judge has a point, the law isn't written very well. Universal has a minor point, they don't have a crystal ball and can't "discern the intent" of someone. However, that is not germane in this case. 'Innocent until proven guilty' applies here as well. DMCA notices should be sent only in cases where there is no *obvious* reason the material might be infringing.

    There are several ways in which a video with a portion of a song would not be infringing. Therefore a video with a song playing in the background of a clip about a baby is not infringing, so they were wrong to send the notice in the first place.

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