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.
Originally posted 2008-07-21 21:27:12. Republished by Blog Post Promoter
>Is fair use grounds for a DMCA recipient to disregard a DMCA takedown notice?
No. The DMCA contains not only takedown provisions but provisions for giving notice to the person or entity that provided the content to assert a fair use defense (or other reason that the alleged infringement does not infringe), and the service provider who receives a DMCA takedown notice must comply with that part of the law as well. The DMCA even contains provisions for restoring the posting upon a satisfactory showing of noninfringement.
I do understand that, Bob, of course. I guess I asked the question in an unsophisticated way. But the problem Mike is talking about is that given the constitutional dimension of fair use, it seems problematic that prima facie you can boot something off the Internet even though you know it’s fair use and I have to suffer having it taken down, at least at first blush, even though it’s obviously fair use. Right?
This reminds me a bit about an issue I once had regarding Rule 11 — which provides for sanctions for frivolous filings. Can a Complaint be frivolous because, although it states a valid claim, there is an obvious and valid affirmative defense? Affirmative defenses generally have to be pleaded and proven by the defendant. Yet the case law holds that if there clearly is an affirmative defense, you can still be sanctioned under Rule 11. (For example statute of limitations. I bring a perfectly valid, maybe even meritorious, claim, except the facts happened too long ago and the applicable statute of limitations has clearly run out.)
That’s a little scary, and I’m glad you mentioned it. I did not know this case law. The reasoning sounds dubious seeing as how, as you mentioned, affirmative defenses not pleaded are waived. Presumably the same logic would apply to arbitration or forum selection clauses, yet in fact sometimes the defendant is in fact happy to waive such provisions under present circumstances. Do the cases say that this rule applies only to affirmative defenses that would never be waived, such as the SOL? If so, how can the law possibly ever recognize their waiver?
Sorry, it’s been a long time since I researched the issue. At the time, IIRC, we were concerned with statute of limitations issues.