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DMCA takedown notices should take fair use into consideration

Started by TLF · 10 months ago

A U.S. district judge got it right yesterday when he refused to dismiss a lawsuit against Universal, ruling that copyright holders should take into account fair use prior to issuing DMCA takedown notices. The dispute arose last year when a woman received a takedown notice over a YouTube video feat ... Continue reading »

9 comments

  • Mike T

    10 months ago

    It would seem to me that the DMCA should be updated to make it so that when you send a takedown notice, you are legally held to a standard which assumes that you have consulted a lawyer, and thus are appraised of the legality of the item which the notice targets. Thus, anyone who files an takedown notice against a fair use item can be held liable for perjury if the judge declares that a person reasonably educated in the law would have never considered it an act of infringement.

    That may be extreme, but as it is, the DMCA is too "automatic;" it encourages people to file takedown notices because the consequences for shutting someone down when they're not harming you are insignificant in practice.
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  • Ryan Radia

    10 months ago

    My understanding is that precedent set by Judge Fogel's ruling, if applied correctly in other cases, essentially means that copyright holders can now be held liable in civil cases for sending takedown notices in bad faith. I'm not sure if there's a need to update the DMCA (well, at least not the takedown provisions) if the courts simply interpret the law properly.
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  • Mike T

    10 months ago

    Would the government be able to file criminal charges under this precedent someone who abuses the DMCA as a means to shut down a business and prevent it from selling products/services online?
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  • Ryan Radia

    10 months ago

    Criminal charges? I don't think so, at least not if the person who filed the DMCA takedown notice was guilty only of ignoring fair use. However, if someone were to knowingly misrepresent their ownership of a copyright in a DMCA takedown notice, then perhaps the government could prosecute them for perjury. I say this because a proper DMCA takedown notice requires the language, ""I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed." Still, ignoring fair use may be grounds for civil penalty if you go by Judge Fogel's ruling. This should deter content owners from using fully automated takedown systems which aren't capable of assessing fair use at all.
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  • Aaron Massey

    10 months ago

    Great post, but I'm curious. Even with a separate, self-hosted library, you're missing out on being able to establish a present in the vibrant YouTube community, so how many of the problems caused by the DMCA does a self-hosted library really solve?
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  • Ryan Radia

    10 months ago

    Good point, Aaron--I suppose I should have pointed out that our primary means of video promotion is still YouTube. We just have a mirror on our site where we host high-bitrate versions of our videos (higher quality than YouTube's high quality) for media relations purposes.
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  • Tim Lee

    10 months ago

    Great post, and thanks for the link!
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  • eBuster

    1 week ago

    I believe the DCMA is going too far and is being used to silence critics of corporations such as eBay who server a notice on my host because the site I run at ebuster,co,uk contains documents relating to wide scale fraud on eBay and as such it is important that pages that are displayed are not tampered with.

    This time I had some luck since eBay picked on a fake login page I displayed after I had asked eBay on several occasions to get the page remove and from what I can understand they are upset about the eBay log at the top of the pages but it’s not like the site trying to compete against eBay and provides hundreds of links back to eBay.

    The reason I present copies of pages is because eBay often remove pages where a dispute is involved so just how can anyone present case of wide scale fraud when it is becoming impossible to present evidence without have a gag order place on your host.

    Yes I understand the reason for the DCMA but using it’s powers in this manor strikes at the heart of democracy and is allowing eBay to do as it pleases and in some cases it is not possible to remove the logo as some of the pages displayed on the site have been hijacked by script injection using hexadecimal code to overwrite the original page and therefore making it all but impossible to remove the eBay tm logo and no I don’t have a zillion$ to get involved with eBays lawyers but I do have freedom of speech so if that involves moving the site offshore then that is what I will do
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  • eBuster

    3 days ago

    I have it in writing that eBay has told my old host company that they are asking the FBI to investigate eBuster which I think is a total joke given all the fraud I’ve uncovered on eBay and eBay has a far from clean name.

    Yes it’s time both the FBI and the UK police looked at eBuster after he was told it’s a civil matter by the police when a fraudster using eight separate ebay accounts is allowed to sell death traps and call them cars.

    Seems like it’s one law for corporations and one law for us but still truth is not denied so easily or did I forget the right to trial by a jury is a thing of the past in the UK.
    reply

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