Slashdot Mirror
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."
"U.S. District Judge Jeremy Fogel has ruled that '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."
Speaking of subjectivity, this summary is rife with it. Even though I agree 100% with it, I would prefer my news fed to me in the form of low grade homogeneous neutral gruel. I know it's more boring to read that way but it allows me, the reader, to form my own opinions. More importantly, it maintains that news source's credibility and will actually make the other side listen instead of instant dismissal. You're also needlessly jeopardizing those who are undecided on this issue. I think I'd rather read:
"U.S. District Judge Jeremy Fogel has ruled that '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 now puts Universal Music at risk over a DMCA Takedown notice they filed. This ruling may also one day be used against those who attempt to file copyright complaints against computer printers & automated DMCA Takedown notices.
I know Slashdot is not a true news site and is more so a news aggregater of whatever CmdrTaco feels is relevant but does anyone else get a sinking suspicion that we might look a bit biased to outsiders?
There's no objectivity in this summary, it just assumes the reader needs to be told how to think (which is usually taken as an insult to intelligence). I just don't want Slashdot to turn into the "Fox News for Geeks, Stuffed into Your Gullet Our Way."
My work here is dung.
Those lawyers who rely upon buggy infringement detection programs to do their thinking for them...might want to think again...
But you've just shown that they don't even think the first time around...
I can't wait to see where the countersuit goes from here.
This guy's the limit!
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.
Maybe it isn't so much reliance on a mindless infringement detection program as groups like the MPAA and RIAA seem to absolutely loathe the concept of fair use. Maybe the lawyers are actually looking for a scapegoat.
I am beginning to think that maybe Darl McBride was attacked viciously by a penguin as a child.
"Universal also raised the question of whether a particular use of copyrighted material constitutes fair use is a "fact-intensive inquiry," arguing that it is difficult for copyright owners to predict whether a court eventually may rule in their favor."
Well isn't that a crying shame, they can't shotgun automated DMCA notices without the threat of consequence anymore. Boohoo.
Murphey's fighting Occam, and we're in the stands.
To date, has anyone anywhere gone on trial for perjuring themselves in a false DMCA notice? If not, why not?
Give me Classic Slashdot or give me death!
that someone in the justice system has noticed that the rabid dog has no right to go around just randomly biting people
but a lot of us are still waiting for someone in the justice system to notice that we need to put the rabid dog out of its misery
there is no more life in copyright for products that can be consumed electronically (music, text, movies, etc.) because there is no way to enforce the legal concept of copyright in an environment where there is zero distribution cost for infinite distribution abilities
the internet killed copyright. the internet lets everyone be a publisher with greater reach than all the most powerful media companies combined. i can share a file with someone in buenos aires, wellington, seoul, and vancouver. my distribution costs are zero. my reach is infinite. there is no such thing as copyright in this environment
there are no checkpoints where a rogue printing press, pirate cd presser, or renegade vcr duplicator can be located by the authorities and shut down. who are you going to shutdown on the internet? traffic can be obscured in such a way that you can't monitor it, and these methods can be encapsulated in code so the clueless end user need not know any special technical abilities to trrde files discreetly, and find anything they want
game over dude
a lot of time now must be spent waiting for everyone else to wake up to this realization
the internet killed copyright
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
All this snowballed because of Prince's song? Gee, even that toddler doesn't really like Prince. And no, his mother wasn't making any $$ from that song. Nothing to see, lets move on.
slashdot rocks
It is certainly the government;s responsibility to help maintain the laws, but what has happened to the normal fiscal responsibility we apply to these things. We don't stop everyone who is speeding. We don't staff police departments so that every person who steals a CD from a car is prosecuted. Yet our court system is being overwhelmed by companies who stand to lose a $20 cd sale due to copyright infringement.
This situation is getting worse. The FBI wants to open a case with no probable cause. Each case represents a finite amount of expenditure of taxpayer money. In times past, we had some assurance that money spent was used to investigate a legitimate crime with legitimate suspects. Now we could have massive amount of waste due to an agent not liking his new neighbor.
"She's a scientist and a lesbian. She's not going to let it slide." Orphan Black
Hmm... I thought that the takedown notices sent to printers was ridiculous because it showed that the method the RIAA used to determine who was pirating music was b0rken.
Apparently, the printers really were downloading music, but they had a fair use! I totally misread that story before. I, for one, will not stand for fair use rights being taken away from our electronic friends!
Clovis
^ Clovis, look! It's that guy you are!
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.
I wonder for whom I should root when a lawyer ends up suing the RIAA on behalf of a slandered printer...
I run a web site for local bands where I give away their MP3 and a few bands have ended up with international gigs because of it. Some of their older songs may have names that new RIAA approved songs happen to have which results in nasty letters from lawyers. I know of at least US$20,000 worth of losses due cancelled gigs due to to RIAA paranoia so far. The RIAA isn't about music, they are after moving small plastic things.
If you don't think the RIAA is out of hand, how much should the senators who sung God Bless America on the steps of the Capital pay the Boy Scouts? The law is the law isn't it?
I am fully prepared to begin holding up my end of the bargain on the copyright equation.
As soon as you are willing to hold up yours.
This includes, but is not limited to:
Copyright is a two-way street, and failure to maintain your responsibilities means a complete forfeiture of any right to try and enforce compliance with my responsibilities. Continued attempts to pass laws in order to shirk your responsibilities will be responded to with unchecked, tube-clogging mass downloading.
'a';DROP TABLE users; SELECT * FROM DATA WHERE name LIKE '%'... if you're reading this, it didn't work.
in other words, you can control access to a venue in the real world, such as a concert hall. so you can't control your mp3 of your song anymore. but you will still make a rich living, have tons of fame and eager female fans. your mp3 becomes advertising, and your source of revenue becomes your journeyman concerts
"Why put the time in when you can't make money off it, so instead I would be forced to do something else to support my family."
oh, you mean like every struggling musician who ever existed? what a crock. what you mean to say is "i recorded a song once, now society owes it to me, my children, and my greatgrandchildre that they never have to work a day in their lives". you see copyright as a path to entitlement. sorry, fuck you, consider this notice that your sense of entitlement is hereby revoked. yes, you DO have to work like the rest of us, sorry asshole
furthermore, this observation of still making $ in a world without copyright can be extrapolated to any other media, even book writers. jk rowling would still be very rich in a world without copyright because she would sell all sorts of ancillary products and sell her script to hollywood. how can you sell a script in a world without copyright? my observation on copyright being dead only applies to media that is consumed electronically, because the internet represents zero distribution costs and infinite reach. anything in the realworld, such as a hollywood production, represents a choke point that doesn't exist on the internet. since cost is involved, control can be exerted. another studio can be sued for making a harry potter movie without the studio who owns the rights' permission. you simply can't do that on the internet. you can do that in the real world, and you will always be able to do that. so notice the qualitification: the copyright is dead in regard to anything that can consumed on the internet, and only in that regard
hollywood itself would still make lots of money because people still like going to theatres. watching the dark knight on a 17 inch monitor in your basement by yourself does not compete. television was supposed to kill hollywood in the 1950s. now the internet is supposed to kill hollywood. the entire time, theatre attendance and revenues keep going up. conclusion: people like going to the theatre, and always will, regardless of all the constant doomsayers. a theater is a venue where you charge attendance, because yu can CONTROL attendance, so we will have $100 million production budgets for decades to come
btw, hollywood will still make money on dvds. people will still buy them to guarantee organization, ease of use, quality. likewise, bertelsmann will still sell cds. its just that they won't stop, or be able to stop, the free trade of dvd and cd content on the web (where most of it will be distributed and consumed for free, granted)
meanwhile, penguin will still sell plenty of books, because nothing competes with woodpulp in terms of cost and convenience and ease of use (sorry kindle)
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
I wish I hadn't clicked "Submit" before:
What I also want to point out is that, if these people who are creating "intellectual property" can no longer afford to do so because they can't make money on their works, there would indeed be a sharp, incredible decline in the number of "works of art". Pop-culture as we know it would utterly cease to exist.
To some this is a good thing. To others, absolutely awful. I just wanted to make sure I pointed this out so I didn't come off *completely* one sided. I don't think that copyright is necessarily bad. But I also think that copyright law, as it is now, is horrendously fubar. If you make money on your copyright works, that's fine, but there's no reason at all why you should get 70 years after your death to make money. That completely unbalances the copyright equation.
It is important to have new works of art added to society. So we provide copyright on those new works to justify the cost of creation to the people creating.
However, if we never get to use those new works of art in any way other than as consumers, then the benefit to society (by being able to use said works in other forms, new packages, or just in any which way they want) is lost. I'd say the value of those works decreases by over half, in that instance, but that's admittedly subjective.
television and radio has been beaming free media content on the airwaves for decades, and they are very profitable. why? how?
because charging someone to buy your book/ software/ cd/ dvd is not, and never has been, the only way money is made in media. the advertising that radio and tv sell is but one of dozens of other ways you can make $ with free software
free software represets an upside to: zero resistance to widespread implementation. if you sold your package for $100, you might have 100 customers. if you sell the same package for $0, now you might have 100,000 customers
so if you have an ancillary business model that makes, say for example, an average of $1 per customer per year (such as advertising, among many other real and speculative secondary revenue streams), you can see your free software actually makes you more money in the end than charging your customers, thereby drastically limiting your reach
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
I'm glad that copyright is working for you, but in the case of the music industry it is out of control, and is actually harmful to individual artists. If we returned to the original definition of copyright, where it belonged to the artist only, I'd support it.
But in the current situation, artists often can't play or distribute songs they wrote, receive little to nothing of copyright-related revenues, and often lose control of future work before they write it.
Internet radio is struggling heavily because the RIAA spinoff SoundExchange has been named the sole arbiter of webcast revenue collection, and are collecting fees on every song played, regardless of who owns the copyright.
If you go to http://www.soundexchange.com/ and follow their "Unregistered List" they have an 84-page list of artists they have collected revenue for but have not been paid. These are mostly indepent labels and artist who more often than not would prefer that their music play for free to generate publicity, rather than receive their 50% share of the $10.38 collected on their behalf. It's a fairly transparent attempt to choke out independent labels and artists by making it prohibitively difficult and expensive to use the otherwise easy and free webcasts to promote themselves.
"The ability to delude yourself may be an important survival tool" - Jane Wagner -
Oh, I hope this is a harbinger for the future. I used to use AudioGalaxy regularly, mostly rare 78s and cylinder recordings from 1900 to 1940 which a number of generous collectors were sharing.
One day, virtually all of the shared material was unavailable. If I recall correctly, all of the items were still visible, but now contained individual notices that they were no longer available due to copyright restrictions.
I made a few weak attempts to contact AudioGalaxy and ask them to restore material that was obviously not under copyright, to ask them what checking they had done, and how they could possibly even think that a 1907 recording of Vesta Victoria singing "There Was I Waiting At The Church" was copyrighted.
Of course, they wouldn't even give me the courtesy of a reply.
"How to Do Nothing," kids activities, back in print!
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
from my othwer comment:
http://slashdot.org/comments.pl?sid=653201&cid=24693271
if you are talking about the internet, where trading files is anonymous, free, and infinite in reach, there is no place for copyright, because it is unenforceable
in any other venue: the real world, or even in small controlled virtual settings with a few players, copyright is still valid, because it is still enforceable
the situation you describe above involves a small set of players playing with something that costs a lot of money. this gives them the incentive, and the means, to control who does what with what media content
so yes, in your scenario, copyright sitll aplies, an always will still apply
but copyright in regard to anything that can distributed AND consumed on the internet is as dead as michael jackson's day care business
an agreement between studios is NOT something distributed and consumed on the internet
its a real world meatspace issue involving a lot of expense by a few slow moving players
copyright is untouchable in this scenario
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
If an entity sues for copyright infringement on some work they claim copyright to and loses with prejudice, they are stripped of any copyright to the work they sued for.
Simple. In litigation, there needs to a concept of jeopardy. Both sides can lose. Not just the case, but something substantial. The defendant here is being sued for monetary compensation. In criminal cases the prosecution jeopardizes their ability to prosecute in the future using better evidence. We clearly need the same principle to apply to copyright litigation.
If you don't want to take away the copyright, at least make the plaintiff pay the amount they were asking for in damages to the defendant. Jeopardy would restore balance to the system.
m
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."
Wrong. Copyleft is a cute term somebody made up to describe a certain type of copyright license. It's still entirely dependent upon copyright law. Like any non-exclusive copyright license, the GPL conveys less than the entire interest in the copyright, meaning that the owner of the copyright can impose restrictions on use of the copyrighted work. It has nothing to do with any inherent right of attribution. In fact, there expressly is NOT an inherent right to attribution in the United States (or any other "moral rights"), which is why Jacobsen (the case last week about the Artistic License) had to deal with the attribution clause.
This statement is not only merely conclusory, it is wrong. Some licenses say that, but they are not considered "copyleft" by the FSF. Copyleft licenses require that derivative works be perpetually re-licensed under the original free software license. If they can place that stipulation on derivative works, it is because Title 17 of the United States Code says they can. If there is no copyright, the only potential cause of action you have is maybe a breach of contract claim, but as the defendant in Jacobsen pointed out, your damages in the case of software you're handing out for free to all takers are essentially zero. That's called efficient breach, and it's perfectly allowable under contract. It's only with copyright that you can get stuff like statutory damages or the defendant's ill-gotten profits.
The rest of your response seems to be simply an observation that it's easier to sue Microsoft (a single entity) than it is to sue millions of people who are just as blatantly violating the copyrights of the media cartels (I'm not talking about Stephanie Luz here; I'm talking about those of you who feel entitled to download songs simply because you want them).
While this may indeed present a practial issue, it has nothing to do with this alleged fundamental difference between copyright and "copyleft."
So pick your poison. Either copyright is a good idea, and the GPL is enforceable, or copyright is a bad idea, and Microsoft can steal your code and do whatever they want with it (similarly, George Lucas could take your Fillipino horror movie and release it in theaters under the auspices of Lucasfilm, re-branded as a Star Wars prequel, and you could do nothing more than rant about it on Slashdot). To say that copyrights are enforceable against Microsoft or George Lucas but not against you is simply hypocritical and intellectually dishonest. Sure, the cartels are evil. But that doesn't change the fact that if you want to control what you create, you need strong copyrights just as much as they do. Get it now?
Today's Sesame Street was brought to you by the number e.
yes, copyright is unenforceable on the internet. do you agree or disagree?
if you disagree, you are in denial, if you agree, forget everything i said, throw it all out. consider me a loathesome poisonous crackpot. i don' care. i'm merely describing reality, a world without copyright. which, obviously, is what the internet is turning it into. see? do you adapt to that? or die off in denial?
and you've kind of revealed your sluggishness of mind on that subject already:
"Hollywood wouldn't make money off of DVDs because most stores would instead sell pirated DVDs, BMG wouldn't make money from CDs because most CDs would be pirated"
my good friend, the subject matter at hand are people are copying and distributing media on the internet. do you understand that? this pirating of dvds and cds is a red herring, a kind ancient 20 year old concern. please update your understanding of the world before us
i think that you are simply in denial. you describe panic and anarchy. really? hollywood doesn't do great business in theatres? there ar eno touring musicians? bertelsmann and dreamworks aren't going to die, they'll just see an aspect of their business atrophy while other aspects takeoff. the artists menwhile, who are mostly ripped off by the distributors will continue to create. copyright as you understand it is in the ideal sense it never existed in. thanks for bringing up jefferson. i think jefferson's keen mind would perceive that copyright is being abused to protect the distributor, not the artist. meanwhile, ever hear of shakespeare? beethoven? i think jefferson would perceive that copyright has been abused, and abolish it. your belief in copyright is mythology. the real world implementation of copyright is as a bullyclub for distributors. artists sign away their rights, and get pennies. stop believing the hype
when you are revolted by me, you aren't disagreeing with me, you are shooting the messenger, you are disagreeing with reality, which i am merely describing
go ahead and hate me, i'm just a random asshole on the internet
reality on the other hand, i suggest you come to grips with
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it