Should Copyright Holders Pay For Bogus DMCA Takedowns?
from the seems-reasonable,-doesn't-it? dept
A few years ago, you may recall that Universal Music issued a takedown for a 29-second video involving a little kid dancing to a Prince song playing on the radio in the background. While the woman issued a counternotice and had the video put back online, the EFF sued Universal Music, claiming that it had filed a false DMCA takedown, since it did not take fair use into account. Universal Music tried to claim that it it shouldn't have to consider fair use, since fair use is just a defense, not a right. While the court eventually did (much to many people's surprise) say that copyright holders do need to take fair use into account, it's not really clear what sort of punishment there is for those who do not. In fact, we've seen that it's quite difficult to get any actual punishment for those who file bogus DMCA takedowns.With that in mind, it's interesting to see that the EFF is now trying to recover its legal fees in the case, claiming that Universal's actions violated section (f) of the DMCA, and thus it should be liable for attorneys fees. Universal claims that there is already a "remedy," which is the counternotice process. But if that were the only remedy, then why does the law allow for legal fee recovery. Furthermore, if the only remedy is a counternotice process, there is nothing to really stop the filing of bogus DMCA notices, since there is no punishment for such activity.
In the linked article, Bennett Haselton argues that paying legal fees like this might not actually make sense, and worries about the legitimate content holder who accidentally files an incorrect DMCA getting hit with a big legal bill. But, again, I'm not sure how that applies. Shouldn't we be just as worried about the completely innocent individual hit with a DMCA takedown and the process they need to go through to get their legal content back online? Given how massive the damage awards can be for simple (even incidental or accidental) copyright infringement, the fact that there is barely any real punishment for bogus copyright claims seems incredibly one-sided and unfair.
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Filed Under: dmca, eff, legal fees, prince
Companies: universal music
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Yes.
People go to court with legitimate concerns all the time. If they lose, they have to pay the defendant's legal fees. Thus, the legitimacy of the claim doesn't matter. I have even less sympathy for someone who 'accidentally' begins a legal process.
I also believe that the award should include punitive damages. If it just includes damages and attorney's fees, what's the incentive to not issue the takedown? In alot of these cases, the takedowns have nothing to do with copyright, and everything to do with stifling speech or newsworthy content.
Alot of people and companies would be perfectly willing to shell out a few grand if it means the video will be taken down for a few weeks, and not put back up until all of the fuss is over with.
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Re: Yes.
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EFF doesn't appear to have a legal leg to stand on with this one.
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Re:
I know, I know, you don't read anything but the title.
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Re: Re:
DMCA has no specific requirements to account for any fair use, and there is little to show that any notification was given specifically in bad faith. If the copyright holder feels that they COULD win in court, that should be enough.
There are no absolutes, except on techdirt.
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Re: Re: Re:
On a separate note, fair use has nothing to do with how integral the original work was to the derivative work. It has to do with whether the creation of the derivative was done fairly, i.e. for purposes such as education, research, parody, or criticism. Even fully copying a work may be fair use if it is done for the right reasons.
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Re: Re: Re: Law
But now we have case law that says that rights holders *do* have to account for fair use.
See how that works?
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Re:
Or do you just oppose everything that Mike says on principle?
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That way you create lots of drama and a feeling among the followers that they need to help defend the site from its enemies.
And then I thought.. Oh wait... what about The Anti Mike? Is this a guy working for Mike tasked with always creating an opposition?
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Re: Re: Re: Re:
Nah
Mike would have hired someone better..
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Re:
Have you arrived in Siberia yet? I hear it's nice this time of year.
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fair use
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Re: fair use
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Re: fair use
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Re: fair use
This is one of the best arguments against 3 strikes laws, ACTA, and pretty much any attempt at enforcing copyright in an open communications medium such as the internet.
Authorized use and fair use, how is anyone (ISP or hosting provider or internet user or content holder) to know which it is?
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Nope, try again
EFF doesn't appear to have a legal leg to stand on with this one."
Pity the court disagrees with you. Maybe you should RTFA?
Shill.
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Re: Nope, try again
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Re: Nope, try again
What the judge is suggestion is to place an even heavier burden on the rights holders to be 100% certain in all cases, which would effectively widen fair use dramatically by making anything marginal, anything that would be decided in court, anything at all as "not 100% certain", and then not worth issuing a DMCA about, which in turn means giving up that area of discussion.
I know it matches up to your personal desires, but it is legally a one sided concept that would greatly expand user rights and greatly limit right holders rights. That isn't what the law states, so I think the judge is out of line.
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Re: Re: Nope, try again
But as you're NOT a judge, and merely an industry shill, it really doesn't matter what YOU think. Until a higher court rules otherwise, the law says the copyright holder must take fair use into account (or in plain English, innocent until proven guilty)
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Re: Re: Nope, try again
And, no, they don't have to be "100% certain." They just have to be reasonably certain of their claim, but be prepared to pay up if they're wrong...like...in plenty of other non-DMCA cases.
But I know, you'd prefer to live in the Anti-Mike Fantasy World where EVERYTHING is either 0% or 100%.
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Re: Re: Re: Nope, try again
If the DMCA'ing person / company is wrong, they are typically a deep pocket defendant that can pay. If they are correct, what do they get besides a warm feeling and an uncollectable judgement?
It is unfair because it is entirely one sided.
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Re: Re: Re: Re: Nope, try again
Please explain how a system that allows a rights holder to get any content anywhere taken down simply by telling its host to remove it, with no penalty for being wrong is "one sided."
Oh, wait, I agree, it's one-sided for the DMCA-issuer. Oops.
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Re: Re: Re: Re: Re: Nope, try again
As for the rest of your post, all I can say is that you appear to have never creating anything worth protecting. If you could get out of mom's basement for a minute and look at the other side of the issue, you would be less likely to have such a smug answer.
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Re: Re: Re: Re: Re: Re: Nope, try again
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Re: Re: Re: Re: Nope, try again
What we have seen is a great abuse of the DMCA takedown process by those issuing the takedowns. They are often being used to stifle free speech or silence something a content creates simply does not like. I agree that not every case of this should result in the person who issued the takedown being forced to pay legal fees, but the court should be able to decide on a case-by-case basis if the action was inappropriate - and then make them pay the legal fees in those cases.
If you can come up with a better way to reduce the number of inappropriate takedowns (and let's face it, there seem to be a lot of them lately), let's open the discussion now.
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Re: Re: Nope, try again
And while I agree with that sentiment, if they don't actually PROVE ownership of copyright, then they should be punished to the full extent of the law.
Moreover, fair use is nothing less than a defense. If you attribute it correctly, then the DMCA should cover it; it is a transformative work, based on a derivation from an earlier work.
"I know it matches up to your personal desires, but it is legally a one sided concept that would greatly expand user rights and greatly limit right holders rights. That isn't what the law states, so I think the judge is out of line."
Then what is a judge for? Ornamentation? These people set down case law. The DMCA is one-sided - remember how the saqfe-harbors clause had to be added before it was ratified and signed in?
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Re: Re: Nope, try again
GOOD! That is the way is should be.
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Burden of proof should be on th copyright holder
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Cost for loss of use.
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Copyleft.
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not even
Not even, he simply uses one guideline: is it written by Mike? If so, take opposite viewpoint regardless of merit. End.
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Re: not even
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Re: not even
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Re: not even
Or was that still when he never typed in his name or had the profile? It might have been when he was still going by Anonymous Coward.
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by RD
"Be nice! He only reads the titles."
Not even, he simply uses one guideline: is it written by Mike? If so, take opposite viewpoint regardless of merit. End.
Thus my name-calling rant in another thread. Please stop feeding this registered troll. He'll soon leave...
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Should Copyright Holders Pay For Bogus DMCA Takedowns?
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Copyfraud is a crime!
Source here.
Source here.
Source here.
Google do nothing against copyfraud (Source here.
Misuse of Copyright Defense (Lasercomb America Inc. v. Reynolds) Source here
U.S. Copyright Act:
- Section 506(c) criminalizes fraudulent uses of copyright notices
- Section 506(e) punishes knowingly making a false representation of a material fact in the application for copyright registration
- Section 512(f) additionally punishes using the safe harbor provisions of the Digital Millennium Copyright Act to remove material the issuer knows is not infringing.
Source here.
It is under "Chapter 5: Copyright Infringement and Remedies"
And apparently the EFF have a strong case if the law is to be correctly interpreted.
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Copyfraud is a crime!
Even though the U.S. copyright ACT is not used by the government to pursue copyfraudsters it may be used to recoup damages by lawyers and that could be profitable.
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explanation might be simpler
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Youtube
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Tough SHIT
Well la-de-FRICKIN-da. In the immortal words of Luther from 48 Hours - who gives a SHIT what you think! Your hypocrisy knows no bounds. You can say that with a straight face when you have REPEATEDLY said in other posts "the law is the law, and must be followed utterly." Now, when its convenient for your argument, and contrary to Mike and everyone else, suddenly its OK to have a fucking OPINION about what a judge (and the law) says. So not only do you reverse yourself when it suits you (hypocrisy), you must be lying to start with about these views.
"What the judge is suggestion is to place an even heavier burden on the rights holders to be 100% certain in all cases, which would effectively widen fair use dramatically by making anything marginal, anything that would be decided in court, anything at all as "not 100% certain", and then not worth issuing a DMCA about, which in turn means giving up that area of discussion."
Listen, sparky. Let me clue you in to a little think in the law and litigation called the "burden of proof." This rests with the PROSECUTION. The "burden" is ALREADY on the rights holders. They have to PROVE HARM (law being broken) or there is no case. Regardless of how much (or little) "fair use" must be taken into account BEFORE filing a takedown, they are STILL under this burden.
"I know it matches up to your personal desires, but it is legally a one sided concept that would greatly expand user rights and greatly limit right holders rights. That isn't what the law states, so I think the judge is out of line."
Funny, we say that all the time and you invalidate it EVERY TIME by stating its the law, and too bad that things arent the way we THINK they SHOULD be.
Hypocrite troll shill. You own-goal your own arguments and invalidate them every time you open your mouth.
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oh, RIGHT!
Oh right! Like how does NOT say "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. "
It also most certainly is not in anything called "the Bill of RIGHTS."
Where the hell do you people come from? You'd sell our country right down the river if you could without so much as a "by your leave" and probably THANK those who destroy it on the way out.
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Re: oh, RIGHT!
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Re: Nope, try again ...again
Wasnt talking to you, it was an AC that said that. Thanks for, once again, not debating the point at all, but instead attacking another part that has nothing to do with the original argument.
"As for the rest of your post, all I can say is that you appear to have never creating anything worth protecting. If you could get out of mom's basement for a minute and look at the other side of the issue, you would be less likely to have such a smug answer."
More than you, I guarantee it. You dont know what I have done, but I can promise, its worth "protecting" more than anything you have ever accomplished. I STILL think copyright is overbroad, protects the few at the expense of the public good, and is generally broken and wielded like a nuclear arsenal. And I havent been in moms basement since she died when I was 16, so FUCK YOU.
I'll reserve the right to a smug answer until you decide to actually debate the points, instead of dodging them with meaningless arguments about things you know nothing about.
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Re: Re: Nope, try again ...again
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Fare Use
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Fare Use
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Re: Fare Use
Alot of people and companies would be perfectly willing to shell out a few grand if it means the video will be taken down for a few weeks, and not put back up until all of the fuss is over with.
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Re:
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Fair use
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