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
    Nick, 21 Jul 2008 @ 7:21am

    It would probably help to know what the law says:
    "Any person who knowingly materially misrepresents under this section... (1) that material or activity is infringing..[shall be liable]"
    Arguably, if a copyright owner sends takedown notices en masse (in response to all results for "prince") it probably doesnt "knowingly misrepresent" that the material is infringing. I think that gets Universal or any other copyright owner off the hook for the first takedown notice, and which is a noted flaw with the DMCA takedown procedure.
    The user then sends a counternotice if they think their activity is covered by fair use, or if the party sending the takedown has no right to claim copyright infringement. Mike, here's your notice and notice provision, though it occurs after the content has been taken down.
    At this point, the material is back up and the copyright owner now has notice of the user's claim. If the copyright owner wishes to take further steps against the user, believing it is right and the user is wrong, this is where liability for a false claim comes into play. Activity covered by fair use is not "infringing" (a legal determination), so claiming that something obviously covered by fair use is infringing opens the door for liability.
    The article is not absolutely clear, but it appears the woman sued before Universal ever sent a second notice. As such, it's probably tough to say that Universal "knowingly misrepresented" that the clip infringed on its rights (unless you could show they had no rights at all to the music involved). I love the work the EFF does, but based on what I'm looking at here, this one may not work out for them.

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