Universal Says DMCA Takedown Notices Can Ignore 'Fair Use'

The article states: "The [DMCA] requires the automatic removal of material a rights holder claims is infringing its copyrights."

That is a common belief, but it is false. The DMCA does not *require* the removal of any material. Rather, the DMCA says that for the site (YouTube in this example) to avail itself of the DMCA's safe harbor from copyright liability, it must (among other things) remove the material. See 17 USC sec. 512(c)(1)(C).

But the safe harbor is only necessary if there actually *is* copyright infringement. YouTube is perfectly free to ignore takedown notices. And if the material at issue isn't infringing (because, for example, it would be subject to a successful fair use defense), YouTube should have no fear of liability for ignoring the notice. Now YouTube doesn't do that, because it doesn't want the bother of making individual determinations, and so simply removes all videos upon receipt of a facially valid DMCA notice. But that's YouTube's decision, not a mandate of the DMCA.

The article also should have pointed out that Universal's position is that its notice was not sent pursuant to the DMCA; rather, it was sent pursuant to YouTube's own terms of service. So, if Universal's argument is accepted by the court, the DMCA's safe harbor provisions would not even apply.

> But that's YouTube's decision, not a mandate of the DMCA.

It might as well be mandated by the DMCA. Who can afford to go without DMCA Safe Harbor for anything in this day and age? It clearly creates a "chilling effect" where providers cannot afford to ignore even bogus requests, when copyright is already in tension with the first amendment.

Takedown notices are RIGHT NOW being sent out wholesale, with little or no regard as to how accurate they are. As a matter of public policy, I do NOT believe it should be allowed to continue.

As long as those sending notices have no duty to examine the reasonableness of their own complaints, we can only expect more innocent parties to suffer.

I'm just surprised we haven't seen more maliciously forged DMCA notices. It's so easy to take a site down with one, after all, that botnets pale in comparison. A single forged notice could cost an online company millions if properly targeted.

How is there even any argument over this? stupid companies are so lame. They keep pushing, and pushing, and pushing... just wait till someone decides to really push back, and push back hard enough that we don't have to worry about time and money wasting laws and court cases... she's not selling it... and it's not the subject of the video either... morons, why does this kind of crap even happen? oh yeah, cuz universal thinks the woman should pay them a dollar every time someone watches her kid be happy. what a bunch of butt pumpers. screw the dmca, and screw our backwards money lubed judicial system.

Let a thousand torrents of "Let's Go Crazy" fly.

fuck the Universal Music Group.

al-Qaeda should have attacked their headquarters.

now..

put me on a terrorist watch list, bitch.

I have to say, as much as I hate the RIAA's tactics, they have a legitimate defense here. They do own the copyright to Prince's song; that is a matter of fact. Stephanie posted a video of her kid dancing to the tune on Youtube; that is also a matter of fact. She also did so without seeking permission from Universal to use their copyrighted work. Therefore, she was in violation of Universal's copyright, and they can legitimately issue a takedown notice, or file a lawsuit for infringement.

What you must keep in mind is that the Fair Use Doctrine is a legal defense against allegations of copyright infringement; it is not a fundamental right. It is a means by which someone can defend their use of copyrighted works without agreement of the copyright owner. If Universal were to sue Stephanie, they would be unsuccessful. However, that doesn't mean their claim of copyright infringement is invalid; it just means that it cannot be prosecuted.

Just as someone can argue fair use to defend against charges of copyright infringement, someone can reassert their right to use the work after a takedown notice has been received. Stephanie's recourse is to challenge the takedown, just as her recourse to a suit would be the fair use doctrine. The proof of fair use in this case falls on the defendant.

What I believe is missing from the DMCA takedown/challenge mechanism is a way to acknowledge use of copyrighted work and assert that its use is fair without going through the takedown/challenge process. If I make my business releasing parodies online, my business would be harmed by the delay this process creates. Say I had to challenge everything I posted. My goods would be made public, removed by the ISP due to a takedown notice, then reinstated after a week due to my challenge. That week where my goods were unavailable would cause my business in the form of lost revenue. If I had a preemptive way to tell my ISP, "If you receive a DMCA takedown notice from Universal or an agent acting on their behalf, do not take my goods down. I am asserting fair use of Universal's copyright to this song, and absolve you of all legal obligations in defense of that assertion."

In Stephanie's case, I don't believe she was harmed by Universal's issuance of a takedown notice. After she challenged it, the video was restored, and Universal apparently decided that a lawsuit would most likely not prevail.

Now, on the other hand, if I were to issue a takedown notice stating that I owned the rights to Prince's music, Stephanie has every right to challenge that AND seek damages from me.

@petiepoo
Did you even read the article?
Do you even realize what the point being argued is? Evidently not, and I'm not taking the time to explain it to you. I'm simply going to call you a dumbass.

already ran into this with FOX pulling fair use clips down via DMCA notices. law needs adjusted b/c its currently being abused by companies on the net.

Anyone know of a case where the music or movie industry has sued an individual for actually DOWNLOADING a song or movie? I'm only aware of cases where they've targeted people who "MADE AVAILABLE" a copyrighted work (e.g., through the SHARE folder of a P2P program or directing someone to a torrent).

The RIAA and MPAA love to phrase the situation as "illegal downloading," but I'm not aware of specific case where they've targeted an actual downloader, just the so-called "sharer" or distributor.

One more reason to take back our country. Just thinking of the benefits for future generations outloud.

@ Christ.

Did YOU even read petiepoo's post, fer Christ's sake?

S/he understands the article on a level you apparently don't. Fair use may very well be irrelevant for DMCA notice/takedown purposes, as s/he illustrates and Universal argues.

EFF argues that ignoring clear fair use/sending notice anyway falls into the category of a 'knowing misrespresentation.' EFF may well/likely will lose.

If you must trollishly flame, at least point it the right way first.

Maybe its time people just STOP buying CDs and DVDs altogether? Maybe its time the people say we have had ENOUGH! Hit those greedy morons where it HURTS in the WALLET!

JT
http://www.Ultimate-Anonymity.com

I can hardly hear the music, let alone recognize it.

It seems that Universal just wanted a show-off trial.

So if someone posts a video of themselves at a function, say a wedding, dancing to a song that is copyrighted by Universal, can they be forced to remove that video from the internet to prevent them from showing their friends? And if I'm shooting a video with friends, and someone is playing the song in the background, do I need to edit that out before I post the video, since the copyright owner would be able to issue a takedown notice if they wanted. Thats how i read this article, at least.

The best part is that universal wasted all this time "fighting the good fight" against against moms and bad quality 29 second videos because THAT is how people pirate their music.

@Bad Precedent

Didn't you know? If you are caught playing a song at a wedding without the express consent of universal records the police will arrest everyone that was enjoying that song or was out on the dance floor. How else will we stop the nazi's i mean the communists i mean the hackers i mean the terrorist i mean illegal downloaders...sorry i keep forgetting who the enemy is...

Petie, the current system would support your hypothetical business of parodies if you were permitted to fight takedown notices without having to incur expense over them, which is what Ms. Lenz is attempting to make a precedent for. If she succeeds at making her damages stick, that will mean that anyone who gets served with a takedown notice has a chance to fight it without having to pay the attorney's fees. If she fails, that effectively bulletproofs any corporation who issues a takedown because nobody will be able to afford to take them on in court; The person filing suit will run out of money long before the corporation will. Heck, the only reason this ruling was handed down so fast was probably because Universal knew it had a very good chance of getting slapped with its rival's attorney fees and asked for a speedy trial.

The law is just fine as it stands: fair use is not clearly defined and gets decided each time a suit is filed. That way, you don't have folks splitting hairs over whether or not the fair use line was crossed. It ensures that the law remains fair and that corporations can go after folks who really and truly do rip them off. Problems are arising because now that there is a law, everyone wants the law to serve them individual instead of having it serve everyone as a whole. Declaring that a person can't recoup legal expenses from a lawsuit of any kind states that the law in question belongs to those rich enough to afford it. In this instance, it would give a green light for corporations to file as many frivolous takedowns as they like, secure in the knowledge that nobody will dare oppose them for fear of being bankrupted.

Hopefully, the judge in this case will realize this and rule in favour of Ms. Lenz.

@petiepoo:What you must keep in mind is that the Fair Use Doctrine is a legal defense against allegations of copyright infringement; it is not a fundamental right..

BULL $HIT. READ BELOW:

The doctrine only existed in the U.S. as common law until it was incorporated into the Copyright Act of 1976, 17 U.S.C. § 107, reprinted here:

“ Notwithstanding the provisions of sections and , 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. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.[1]

Copyright infringement isn't an assumed fact jackass. The US code holds all persons innocent in criminal and civil matters until proven guilty. Fair Use isn't simply a "legal defense" as you state, but is clearly enshrined in the copyright law highlighted above. Universal cannot ignore fair use just because they think they might win their case. In fact, THEY LOST. The clip IS CURRENTLY ON YOUTUBE. That means, hmmm..no copyright infringement maybe?
Perhaps not being an arrogant SOB, and, reading, will help.

Fair use is a defense usually, but balancing the equities here, I think it is completely appropriate for the concept of "fair use" to be a consideration mandated prior to a "take down" notice. For example, when any kind of prior restraint on speech (and even commercial speech is protected to some extent) is alleged, the courts are instructed to look long and hard at it and make sure it is not unnecessarily broad. Well a take down notice is a prior restraint, like it or not, and therefore an overly broad license to issue these draconian fiats should be violative of the "first amendment". And let's remember, parody is protected speech :-).

I'm surprised that a defense based on the quality of the recording can't be made. How many times would you want to hear Prince's song through Ms. Lenz's You Tube posting? C'mon, this is a no brainer. There are many reasons to watch this video, but hearing Prince so terribly distorted cannot reasonably thought to be one of them.

I'm surprised that a defense based on the quality of the recording can't be made. How many times would you want to hear Prince's song through Ms. Lenz's You Tube posting? C'mon, this is a no brainer. There are many reasons to watch this video, but hearing Prince so terribly distorted cannot reasonably thought to be one of them.

Welcome to advertising 3.0. I wouldn't be surprised if someone from universal came up with the savvy idea of simply creating a hollow case like this to generate buzz and spike the hits on the video thereby causing half a million people to hear Princes' song in the hopes that some percent of them will then go acquire it "legitimately".

If not that, then it was still a win-win. Universal either wins in court, or they benefit as outlined above...as long as more people are interested in the song rather than being angered by universals actions. But my instinct is that very few people seeing the video will think that far or know that much history about it.

universal music group can fuck right off. see if i ever give them a cent of my money after this ridiculous lawsuit.