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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."
"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.
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
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 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'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 -
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