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YouTube 'Dancing Baby' Copyright Ruling Sets Pre-Trial Fair Use Guideline
Mr. Droopy Drawers writes with news that the famous "Dancing Baby" case will move forward to trial, after a pre-trial ruling Monday that's already unpopular with the copyright holders on one side of the case. The New York Times reports that a three-judge panel has "ruled that copyright holders must consider fair use before asking services like YouTube to remove videos that include material they control. ... [The guideline] "sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech," Corynne McSherry, the legal director for Electronic Frontier Foundation, said in a statement." Mr. Droopy Drawers adds, "Of course, the RIAA is none too happy about the ruling saying, that it puts undue burden on copyright holders. However, the judge countered, 'Even paying "lip service" to the consideration of fair use is not enough, and could expose a copyright holder to liability.'"
(Also covered in an AP story carried by the Minneapolis Star-Tribune.)
(Also covered in an AP story carried by the Minneapolis Star-Tribune.)
You mean that someone will actually have to _think_ before initiating legal action? And that we have some kind of duty to actually be right before laying down the law-hammer? What are we supposed to do with these fleets of autonomous sentry drones armed with fire-and-forget rocket dockets?
Next you'll be telling me that we have to make sure we have the right address before we start foreclosing on homes. This isn't the America I grew up in.
Section 107 specifies four things that should be considered in deciding if the use is fair.
https://www.law.cornell.edu/us...
1) Is the use commercial, or not?
The person posting wasn't making money from it, it was non-commercial in terms of suing the person posting it. I'm not sure if Youtube had ads at the time. In a suit against YouTube in it's current form, it would be commercial use.
2) The nature of the use
It's a very short video of small children, unlike the product sold by the record company. The subject of the video is the kids, the song is somewhat incidental.
3) the amount of the original work used, in proportion to the total.
Only 20 seconds of the song are used.
4) the degree to which the use affects the value of the original work - does it compete with authorized copies?
The video contained 20 seconds of low-quality audio. Approximately nobody would listen to the video instead of buying the song. In other words, no harm no foul.
The video scores quite well on at least three of the four points to be considered fair use. The degree to which it was commercial depends on how YouTube was doing their ads in 2007, and if the label wants to sue Youtube or the person posting it.
Courts may also consider other factors as well to determine fairness, but they must consider the four factors listed above.
Yeah, well, it's also in the DMCA that companies are making a sworn statement but nobody has every been charged with perjury.
Except that you've misunderstood what they are swearing to. The DMCA doesn't require a sworn statement that the material they are complaining about infringes their material. It only requires a sworn statement that the material they are complaining is being infringed upon belongs to them.
In other words, if I write a song and you upload a different song and I want to file a DMCA takedown, I am well within my legal rights. I am required to swear that I actually hold the copyright to MY song...not that your song actually infringes on my song (that's for the court to determine). However, if I file a takedown complaining that your song infringes on a Beetles song, then I am guilty of purjery, since I swore that I own the copyright to that Beetles song (which I don't)
Isn't it already in the DMCA laws that complaints must have some merit with regards to fair use?
not explicitly.
the complainer has to assert under penalty of perjury that
“We have a good faith belief that the above-described activity is not authorized by the copyright owner, its agent, or the law.”
Universal argued that fair use didn't count as authorization - but was more like an excuse which protected a user from the normal consequences of their infringing usage.
The court disagreed - they declared that fair use was an explicit authorization under the law.
the ruling is here:
https://www.eff.org/files/2015...
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you misunderstand;
the ninth circuit appeals court just ruled on a narrow point with regard to the overall case.
the case now goes back to the _lower_ court who will rule on issues such as 'was this fair use?' and decide the result overall.
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Correction to your correction: you have to take it down to retain _immunity_ from liability. In many cases you're still not liable under the case law that existed before the DMCA. And if the work proves not to be infringing in the first place then no way no how are you liable.
Moderating "-1, Disagree" is simple censorship. Have the guts to post your opinion.