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EFF To Ask Judge To Rule That Universal Abused the DMCA
xSander writes "The Electronic Frontier Foundation (EFF) will urge a federal judge in San Jose, CA to rule that Universal abused the DMCA to take down a video of a toddler dancing to a Prince song. The case in question, whose oral argument will be Tuesday, October 16, is Stephanie Lenz vs. Universal, a case that began back in 2007. Lenz shared a video on YouTube of her son dancing to 'Let's Go Crazy' on a stereo in the background. After Universal took the video down, Lenz filed a suit with help of the EFF to hold Universal accountable for taking down her fair use. The court had already decided that content owners must consider fair use before sending copyright takedown notices."
Where is the line between this "fair use" and using the song to promote your personal brand? I think this particular case is better dealt with socially by embarassing the shit out of universal for being such tools.
I'd rather see them go after the automated systems that are sending DMCA notices for things that are clearly NOT their IP in any way shape or form.
Universal?. Hmm. Most all of my childhood memories are owned by Disney and Time-Warner.
I think the idea is that the DMCA is supposedly only invoked in good faith, and that it would only be used in cases where their is a clear copyright violation. If this were the case, then I think most people would consider the DMCA a relatively fair and benign method of copyright protection. The problem is that it is not being used in good faith. Rather, it is being thrown at virtually everything to see what it sticks on, and it's so sticky it sticks to everything. So, to answer your question, I don't think it was intended (except, of course, by it's industry backers) to be used this way.
The only thing necessary for evil to triumph is for it to be pitted against a slightly greater evil
We need more of these trigger-happy infringement notice filers to be held accountable. I get the impression that at this point they feel they can do no wrong, and will just fire off a takedown notice with no thought to the consequences. They need to learn that we won't stand for their abuse of the system.
Applying some of the teeth in the anti-abuse clause in the DMCA is the only way to change their attitude. These groups won't stop abusing the system until it starts affecting their bottom line.
(of all the things I've seen the EFF do lately, this is the one that I appreciate the most)
I work for the Department of Redundancy Department.
You must not be living in Germany then, since you didn't experience GEMA's talibanesque crusade against "public performance of music." At least in the US, they have Fair Use provisions. Europe doesn't have them, AFAIK. In a sense, copyright-wise, European legislation is even worse than the dismal US copyright legislation.
cpghost at Cordula's Web.
As it is often pointed out here, by clear case law corporations are supposed to get the most for their stockholders. They're basically mandated by caselaw to push the envelope. Therefore you can't trust corporations to do the right thing... ever. Any law that expects a corporation to work in good faith is flawed. The only way you can call them on it is to take them to court, then it turns out to be the usual "my lawyer is bigger than your lawyer" crap.
They shouldn't have the power to take something down on their own say so. It's a violation of both due process and free speech. But, heh, they can afford a better lawyer than I can. That's america.
But what harm came to the copyright holder? At worst it was $0. It might be negative harm since someone might have seen it and went and bought a prince album. Maybe it could of used the YouTube model and provide a link to buy the music.
Sorry... it's asinine. It's using the copyright law as a sword instead of a shield. If you care about a tight interpretation of the Constitution it's pretty obvious that copyright is well beyond its stated intent. It's funny how strict constitutionalists change their tune when their corporate buddies are involved.
Always blaming shareholders is silly, and they are not "mandated by caselaw to push the envelope," any more than a dictator is mandated by natural law to kill any and all resistance. Why don't we just say that those particular people are dirtbags, and not diffuse the blame because "they are forced to do so."
In short, yes:
From the abstract of "Free Speech Unmoored in Copyright’s Safe Harbor: Chilling Effects of the DMCA on the First Amendment" by Wendy Seltzer
http://jolt.law.harvard.edu/articles/pdf/v24/24HarvJLTech171.pdf
If this takedown procedure took place through the courts, it would trigger First Amendment scrutiny as a prior restraint, silencing speech before an adjudication of lawfulness. Because DMCA takedowns are privately administered through ISPs, however, they have not received such constitutional scrutiny, despite their high risk of error.
The actual article argues that although the takedown notices are carried out by private entities, they are being done "in the shadow of the law". However, until a court accepts this, prior restraint does not apply.
You're forgetting the insanity in the UK, this stupidity has been going on for years, a lot longer than people realise. Take Kwik Fit (UK vehicle maintenance franchise) for example...
http://arstechnica.com/tech-policy/2007/10/the-next-copycrime-making-hearable-rings-up-200000-copyright-suit/
I was bemused as a kid, when they started all this shit. "Home taping is killing music". My arse. Yeah, I'm sure *I* killed the Bay City Rollers because I put them on a mixtape for my gf. Or mmmh, dontcha think maybe they just went out of fashion?
Now, decades later the whine is louder than ever. Sad.
None of the things you mentioned are criteria for determining whether something is fair use. They are examples given in the law, and were never intended to be an exhaustive enumeration of instances of fair use:
... the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
The real criteria for fair use follows that introductory paragraph:
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
This video easily passes those criteria.
Glad to see somebody trying to set the record straight. Corporations are not required to take any steps that, in their management's judgement, might be contrary to law. There are several areas of law where the exact opposite is the case. (Just try to claim in a U.S. court, that your corporation was compelled to bribe local officials in a non U.S. locale because "it's the way that culture works" and you would have been remiss to not use bribery to maximise shareholder value. You'll find out that there are international treaties supporting the U.S. penalizing your corp for something it did off of US soil.). In addition, it's usually possible for a board to 'beat the rap' by simply claiming they were avoiding negative publicity for such actions, i..e. by claiming they feared triggering a boycott movement.
The problem starts when somebody finds out that shareholders have sued because a board of directors 'failed to maximise value'. The correct way to look at that is that somebody has sued NASA because a kid on a playground broke their window with a baseball. Just because somebody files a lawsuit doesn't mean it is at all reasonable nor that they have any chance of winning. Somebody might sue you for breathing their air, now do you go through life using that to justify your every action? There have been a few reasonable claims that a board was failing in its duties, but many more unreasonable ones, and the chance anyone will win a suit against a board of directors over shareholder value is pretty slim overall.
Here's the sort of situation where a shareholder value claim can win: The board appears to be taking steps that are generally devaluing the company, or at least making it perform at far under anticipated projections. Judicial review shows these steps may have helped another company profit, and part of the board consists of members who have some sort of 'less than arms length' relation with that company.
Who is John Cabal?
No, they are bound by case law to work towards fulfilling the goals that were laid out to their shareholders. Those goals are very, very rarely "make as much money as possible". They range from "maximize shareholder value" (which isn't the same thing as maximizing short term profit) to "uphold traditional christian values". No one ever said that selling stock of your company meant you had to run said company like a sociopath.
Here's an interesting counterexample very fresh in my memory.
Two days ago I watched the "Cat watches Slayer" video posted on wimp.com (http://www.wimp.com/watchingslayer/). I remembered how much I loved Slayer when I was 16-18 and all I could find was a couple of cassette tapes which I couldn't play anymore (yeah, I got rid of my cassette player) so I immediately went and bought their albums online. Yes, all of them, because I could afford this one purchase.
So, paradoxically, a video of a cat watching Slayer boosted some Slayer sales. Go figure.
...gis sdrawkcab (usually not responding to ACs; don't bother posting as AC)