Mike Masnick on a key question: Whether copyright fair use, no matter how obvious, may be ignored by a would-be copyright owner when sending a DMCA takedown notice that but for the fair use defense is “reasonable”:
The DMCA has provisions for a copyright holder to assert ownership, at which point the service provider needs to takedown the content. Whoever posted the content can protest that the content was legally posted — which is exactly what happened in this case. However, the DMCA also says that filing a false DMCA notice opens one up to damages from those whose content was taken down. This was in an effort to discourage false DMCA notices. This provision was used last year against Viacom for its false takedowns on satirical clips of the Colbert Report.
The question then, is whether or not filing a takedown notice on content that is used in a way consistent with “fair use” is a misuse or not. Universal Music’s claim is that it is not reasonable for the copyright holder to take fair use into consideration before sending a takedown notice. At a first pass, it sounds like the judge agrees.
As ridiculous as this whole situation is, the judge and Universal Music may be correct under the existing law.
A corrollary: Is fair use grounds for a DMCA recipient to disregard a DMCA takedown notice? Hat tip to aggregator Tech Verdict.
UPDATE from Carolyn Wright.