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Fair Use Must Be Considered In DMCA Notices
I Don't Believe in Imaginary Property writes "US District Judge Jeremy Fogel has ruled that an 'allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim,' which paves the way for a lawsuit against Universal Music over a ridiculous DMCA Takedown notice they filed. One can only hope that this ruling will some day be used against those who file misguided copyright complaints against computer printers. Those lawyers who rely upon buggy infringement detection programs to do their thinking for them — programs which are incapable of making subjective considerations like fair use — might want to think again before rubber stamping computer-generated DMCA Takedown notices."
FTFA: 'Still, Judge Fogel said he had "considerable doubt that Lenz will be able to prove that Universal acted with subjective bad faith" when it sent YouTube the takedown notice.' If I were a betting man (and I am), I'd bet Universal wins this one.
A brief recap for those who haven't been following the case:
Around Feb. 2007, Stephanie Lenz posted a Youtube video of her toddler laughing and dancing to Prince's "Let's Go Crazy". The song is heard somewhat indistinctly in the background of the low resolution, low fidelity 29 second video. Four months later, Universal sent a takedown notice to Youtube to remove the video. Mrs. Lenz with the Electronic Frontier Foundation filed a counter-notice and sued under a provision of the DMCA.
Universal wanted the case dismissed with their brief arguing:
In court, Universal also tried to argue that their takedown notice wasn't a DMCA takedown notice because the notice had a disclaimer saying it wasn't. The notice however followed the same procedure as a DMCA takedown and was sent to the DMCA takedown email address at Youtube. This point is important as the DMCA has a provision that allows for lawsuits if copyright holder abuses the DMCA. The Judge didn't address this point in particular but apparently disagreed given his ruling.
Universal however seemingly admitted to ABC News that it doesn't really check material for Fair Use before sending out takedown notices and doesn't care:
This is another important point because copyright law requires copyright holders should be diligent when pursuing legal actions. From what we know of the RIAA lawsuits, Universal doesn't seem to think this applies to them.
Well, there's spam egg sausage and spam, that's not got much spam in it.
You can't copyright titles: Song names, book names, movie names, etc.
Otherwise Alan E. Nourse would have a dandy suit against Warner Brothers over _Bladerunner_.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
This is less sinister than it sounds.
It is a common practice that when a book store buys way too many copies of a book from a publisher, that they can "return" the overstock to the publisher by ripping the covers of the book off and sending just those back, and tossing the rest of the book into the trash.
Some unscrupulous book stores will turn around and sell the coverless books, thus screwing the publisher.
Often times, the wording is less legalistic and states something to the effect of, "if you bought this book without its cover, you should know that this means you bought something that was declared unsold and was supposed to be destroyed. Please contact the publisher so we can go after the numbnut who tried to screw us."