Did Michael Savage Violate The DMCA By Demanding Takedown Of Content Already Declared Fair Use?
from the questions,-questions,-questions... dept
Savage responded on a number of points, trying to get himself out of the lawsuit, which have now been rejected by the court, though some interesting questions are raised by Eric Goldman in analyzing the decision. First, Savage claimed that he's not liable for a false DMCA takedown because OTRN sent it, rather than Savage. Except... Savage owns the copyright and in filing the takedown, OTRN had to claim that it was representing the copyright holder's interests, so the court tossed out that argument. Then Savage claimed it wasn't really a DMCA takedown, so he shouldn't be subject to sanctions for bogus DMCA takedowns, but the court found it to be substantially similar, so that argument got tossed as well.
But what makes this case interesting is what Goldman discusses in the final paragraph. You may recall last year, that a court ruled that those who are sending DMCA takedown notices need to at least consider if the use is fair use before sending the DMCA takedown (it doesn't say that you can't send the takedown, but that you first have to consider whether it's fair use). However, as Goldman notes, this case takes the question a step further because of the earlier lawsuit, where the use of substantially similar content was already ruled by the court to be fair use. To send a takedown on the same content certainly seems pretty questionable.
Of course, I'd guess that Savage's response would be that Brave New Films' use wasn't exactly the same, and thus he (or OTRN) no longer believed the use to be fair, but that may be difficult given the similarities between BNF's use and the use in the original case. Either way, this may be an interesting case to watch to see if someone finally gets in trouble for sending a DMCA on obviously fair use content.