Did Michael Savage Violate The DMCA By Demanding Takedown Of Content Already Declared Fair Use?

from the questions,-questions,-questions... dept

We've written a few times about radio show host Michael Savage and his misuse of copyright law. Last year, he sued a group that he had criticized on-air for using the clip from his show on their website to respond. It took just a few months for a court to toss out the lawsuit and explain the basics of fair use to Savage. However, soon after that, Savage and his syndicator, Online Talk Radio Network (OTRN), sent out new DMCA notices, including one to the documentary film company Brave New Films, for a video clip that used the same material that had been used in the original lawsuit in a commentary about Savage. In response, Brave New Films, with the help of Stanford's Fair Use Project sued Savage and OTRN.

Savage responded on a number of points, trying to get himself out of the lawsuit, which have now been rejected by the court, though some interesting questions are raised by Eric Goldman in analyzing the decision. First, Savage claimed that he's not liable for a false DMCA takedown because OTRN sent it, rather than Savage. Except... Savage owns the copyright and in filing the takedown, OTRN had to claim that it was representing the copyright holder's interests, so the court tossed out that argument. Then Savage claimed it wasn't really a DMCA takedown, so he shouldn't be subject to sanctions for bogus DMCA takedowns, but the court found it to be substantially similar, so that argument got tossed as well.

But what makes this case interesting is what Goldman discusses in the final paragraph. You may recall last year, that a court ruled that those who are sending DMCA takedown notices need to at least consider if the use is fair use before sending the DMCA takedown (it doesn't say that you can't send the takedown, but that you first have to consider whether it's fair use). However, as Goldman notes, this case takes the question a step further because of the earlier lawsuit, where the use of substantially similar content was already ruled by the court to be fair use. To send a takedown on the same content certainly seems pretty questionable.

Of course, I'd guess that Savage's response would be that Brave New Films' use wasn't exactly the same, and thus he (or OTRN) no longer believed the use to be fair, but that may be difficult given the similarities between BNF's use and the use in the original case. Either way, this may be an interesting case to watch to see if someone finally gets in trouble for sending a DMCA on obviously fair use content.

Filed Under: copyright, dmca, fair use, michael savage, takedown

Not Smart: Warner Music Issues DMCA Takedown On Larry Lessig Presentation

from the this-is-going-to-hurt dept

If there were anyone out there to whom you would not want to send a random takedown notice for an online video, it would probably be Larry Lessig. Given that Lessig has become the public face for those who feel that copyright has been stretched too far, as well as being a founder of Stanford's Fair Use Project, and who's written multiple books on these issues, you would think (just maybe) that any copyright holder would at least think twice before sending a DMCA takedown on a Larry Lessig presentation.

Apparently, you'd be wrong.

Lessig has announced that Warner Music issued a DMCA takedown on one of Lessig's own presentations, in which his use is almost certainly fair use. Lessig, of course, is a lawyer, and a big supporter of fair use, so it's no surprise that he's also said he's going to be fighting this.

The thing that I can't understand is who at Warner Music would decide this was a good idea? We've seen Warner make a number of highly questionable moves over the past six months, but this may be the most incomprehensible. Warner Music may claim it was an accident or that it didn't mean to send the takedown, but that's hard to fathom as well. The DMCA rules are pretty clear, that the filer needs to clearly own the content, and previously lawsuits have said they need to take fair use into account. I'm guessing we haven't heard the end of this yet...

Update: Some people have been asking which Lessig presentation was taken down. It's been reposted elsewhere, so you can check it out, and then explain how Warner Music has any claim to a takedown.

Filed Under: copyright, dmca, fair use, larry lessig, takedown
Companies: warner music group

Custom Toy Blogger Accused Of Infringing On Wolverine

from the take-a-look-at-the-photos dept

Reader shaniac points us to a blog post on a custom toy blog, where the blogger explains how some of his photo galleries of custom toys he made were forced offline due to a DMCA takedown notice from 20th Century Fox, claiming that they infringed on intellectual property from the Wolverine movie. Except, if you look at the images, it seems pretty clear that they've got nothing, whatsoever, to do with Wolverine. In other words, 20th Century Fox appears to have broken the law, in claiming it held the copyright over the figures in those images, when it appears it did not. Unfortunately, the site hosting his content doesn't fully understand that under the DMCA it can re-enable his content if he files a counternotice and 20th Century Fox fails to file a lawsuit within a specified period of time. Instead, it's told the blogger that he needs to get the lawyer from 20th Century Fox to agree that the content doesn't infringe -- and the lawyers don't seem to be responding to any emails, meaning that the blogger is stuck in limbo for no good reason.

Filed Under: copyright, custom toys, dmca, takedown, toys, wolverine
Companies: 20th century fox, news corp

Activist Group Uses DMCA To Take Down Video Exposing Its Fake Concerned Citizens

from the dmca-abuse? dept

We've definitely seen cases where activist groups, upset with what people were saying about them, used the DMCA abusively to remove content that they had no real say over. However, this latest story is a bit strange. Before we get to it, though, I'm going to ask, politely, that the comments stick to the copyright issues at hand, rather than the political issues... Apparently, a group called The National Organization for Marriage (NOM) put together a video of "ordinary people" worrying about the impact of gay marriage being allowed. It turns out that everyone in the video is an actor, and the fact that they're "fake" received plenty of attention earlier this week, including being shown on the Rachel Maddow show on MSNBC, which included clips of the audition tapes of the actors. The clip of the MSNBC segment was then put on YouTube. And here's where the copyright questions come in... the video was of the MSNBC segment, but NOM put in a DMCA takedown request, which YouTube obeyed.

That raises all sorts of questions... MSNBC reporting on the videos is almost certainly fair use of NOM's videos. But, it was someone else who uploaded the MSNBC clip to YouTube. MSNBC is still running the clip on its own site -- but, if anyone had any sort of DMCA claim on the video, one would think it would be MSNBC... not NOM. So, then, is NOM abusing the DMCA takedown process, in demanding an entire video (most of which is not its content) be taken down? Seems like you (or, say, the EFF) could make a pretty strong case for that...

Filed Under: copyright, dmca, takedown
Companies: msnbc, nom, youtube

Overly Aggressive Automated Takedowns Hit Scribd

from the though,-they-corrected-it dept

Scribd has come under some totally mistargeted criticism for being a supposed haven of book piracy. The company is clearly protected by DMCA safe harbors, and appears to work extra hard to deal with any infringement found on its platform. Part of that is an automated system that will take down content it believes is infringing. And, as we've seen with automated takedowns on others sites, sometimes it gets a little too aggressive. The folks over at Against Monopoly point out that it took down a copy of Adam Smith's Wealth of Nations, a book most of you would agree is very much in the public domain at this point. To Scribd's credit, the company quickly admitted the error (saying it was a technical error) and corrected it. But, still, it shows the dangers of such automated systems. They certainly don't do a good job dealing with fair use cases, and they often have problems with the public domain as well.

Filed Under: adam smith, dmca, takedown, wealth of nations
Companies: scribd

Just Because You Can Do A DMCA Takedown Doesn't Mean You Should...

from the think-twice dept

Many lawyers are taught (or learn from experience) to approach any legal issue by going to an extreme position, on the assumption that eventually there will be a negotiation with opposing counsel and a settlement will get worked out somewhere in the middle. That often made the most sense in many cases, but it doesn't work very well in lots of situations online today. And that's part of the reason we see, time after time, companies reach for the legal nastygram solution when an open conversation would work just fine. The latest example of that: Boing Boing alerts us to news that the site Apartment Therapy was the recipient of a DMCA takedown notice (actually, to be accurate, the NYT's lawyers went over their head and straight to their hosting company). At issue were blog posts on the AT site, which linked to the NY Times articles, but also used images from the Times' site.

There may be a fair use claim that could be made, but even if we ignore that and assume that this is, absolutely, infringement, the entire approach by the NY Times doesn't make much sense, and is representative of that "attack" line of thinking. As AT notes, if the NY Times had just approached them and asked them to stop using its photos, it would have. But, instead, the lawyers had to send a DMCA legal nastygram. Even then, it's difficult to see how this makes sense. The AT posts were designed to get people more interested in the NY Times' articles, by giving them a taste and sending them to the site. Why would anyone at the NY Times want to stop that? And that's especially true after the NY Times was just on the opposite end of a recent lawsuit. If people had just looked at this reasonably, rather than taking the default legal position, the NY Times might have realized that this site benefits rather than harms them, and even if they had felt otherwise, realized there was a much friendlier way to approach the situation.

Filed Under: dmca, takedown
Companies: apartment therapy, ny times

Canon Tries To Shut Down Fake Canon Parody Blog

from the fake-fake-fake-fake dept

Thomas Hawk writes "An interesting twist over at the Fake Chuck Westfall Blog. Fake Chuck (like Fake Steve before him) has a blog out parodying Canon's real Technical Information Advisor Chuck Westfall. It seems that Canon and their lawyers over at Loeb & Loeb are none too fond of all the fun that Fake Chuck and DSLR geeks everywhere have been having at their expense and have sent Fake Chuck's blog hosting company, WordPress, a notice to take the blog down. Canon's lawyers cite that Fake Chuck's blog is "calculated to mislead recipients," even though the blog has "fake" in the title, "fake" in the URL and "fake" just about everywhere else in the blog. What in the heck is wrong with Canon, do they really think that trying to shut down a parody blog is going to make their new 5D Mark II ship any faster?"

It's hard to understand Canon's reasoning here -- other than maybe to pull a "reverse" Streisand Effect and try to get more attention to the blog. After all, before this, who actually cared about a fake blog of a guy most people had no clue even existed?

Filed Under: fake blog, fake chuck westfall, lawyers, takedown
Companies: canon

Radio Station Uses Copyright Claim To Try To Silence Bad Science Critic; Guess What Happens?

from the streisand-is-calling dept

A whole bunch of folks are sending this one in, so let's get it covered. Ben Goldacre writes the excellent BadScience blog where he exposes those promoting (you guessed it) "bad science." It's been a great resource in the past. Earlier this week, he took on a radio program in the UK, hosted by Jeni Barnett. Apparently, Barnett went on at length bringing up numerous highly questionable points siding with the rising tide of anti-immunization parents (who refuse to have their children immunized from things such as measles, mumps and rubella). Goldacre posted a 44-minute clip of the show to let his readers understand the extent of what Barnett had said, making sure that nothing he was talking about was taken out of context.

Of course, rather than respond to this, perhaps by at least trying to back up what Barnett had said, LBC just sent a takedown notice using the typical threatening legal talk, demanding that it be removed immediately, that the lawyers be informed -- and making it clear that they still might sue him anyway. So, what's been the response? Well, a ton of sites have picked up on the story, giving a lot more attention to both Barnett's "bad science" and LBC's unwillingness to be open to any criticism. Hello, Streisand Effect.

This is, quite clearly, another example of copyright being used, not to "protect" the creator's rights, but to prevent free speech and try (and fail, miserably) to quiet public dissent. We've seen this thing backfire so many times, it makes you wonder why big companies and their expensive lawyers somehow still think it works.

Filed Under: anti-immunization, bad science, ben goldacre, copyright, jeni barnett, takedown
Companies: lbc

Once Again, You Don't Get To Use DMCA Takedowns To Remove Any Content You Don't Like

from the it-has-to-be-copyright-infringement-of-your-content dept

Michael Geist has the latest example of what appears to be a company abusing the DMCA takedown process to try to quiet the speech of someone they didn't like who was criticizing them. In this case, Canada Post sent a takedown notice to YouTube for a video from union members making fun of Canada Post's CEO. The video was a parody song, sung to a Dr. Seuss tune, with lyrics making fun of the CEO. Since the song was clearly not covered by any Canada Post copyright, a DMCA takedown would break the law, which requires any takedown be from the copyright holder. Canada Post tried to claim that the infringement was actually an altered photo of the CEO briefly shown in the film -- but that's a pretty clear fair use, and, as Geist notes, recent US court rulings say that fair use should be taken into account before sending a takedown.

This seems like a pretty clear case of abusing the takedown process to try to silence critics. But it's made even more interesting that it involves two Canadian organizations... but is using US law. That's because the video was hosted at YouTube, in the US. It certainly does raise, once again, questions concerning jurisdiction on the internet -- and how laws apply across borders.

Filed Under: canada, copyright, dmca, takedown
Companies: canada post

Warner Music Takes Down Popular Star Wars Acapella Video

from the but-why? dept

Warner Music Group sure does have a way of shooting itself in the foot repeatedly these days. The company, which keeps claiming that it's not as bad as the public makes it out to be, sure is working hard to suggest otherwise. You may recall that, beyond trying to institute a music tax (which is a bad idea) and suing any innovative startup that has anything to do with music, the company is also in the middle of a dispute with YouTube over how much money Google should pay Warner Music for any uploaded video that includes any bit of Warner Music Group music. This has served to piss off some of Warner's own musicians, and now it's pissing off fans as well -- whose anger (warning: that video is not even remotely safe for work if your speakers are turned on) is getting directed right back at Warner Music.

The latest, as sent in by Rose M. Welch, is that Warner appears to have taken down a super popular video of one guy, Corey Vidal, singing all parts to an amusing 4-part a capella tribute to Star Wars, to the tune of a number of different John Williams' songs. The actual a capella song is sung by a group called Moosebutter (who is not signed to Warner Music) and Corey's video of their song was done with Moosebutter's full support. You can still see Corey's video on other sites of course: It's worth noting that this is not Corey's first battle with Warner Music. Last year, he apparently put up a video of him dancing to a short segment from a new song from Madonna... before the song was actually released. Warner Music had the video taken down -- even though Madonna herself apparently put up her own video saying she supported such fan-made videos. Either way, Corey filed a counternotice on the takedown, and since Warner Music failed to respond, the video was put back up.

It's not at all clear if this new takedown is related to the last one, but it's extremely difficult to see how Warner Music has the slightest claim here. The song is written and performed by Moosebutter, while the video was done by Corey, and while the song does use some melodies from John Williams songs, I think you'd be hard pressed to find anyone familiar with copyright law (other than, of course, entertainment industry IP lawyers) who doesn't think the song is pretty clear fair use. It's transformative, not derivative. It's a parody. It doesn't harm the commercial value of the original works. Moosebutter is also confused as to why it was just Corey's video taken down, when many others use the song as well. It's as if Warner Music purposely targeted the most popular viral video with this song in it. In fact, I'd argue the only harm done to the commercial value of Warner Music was done by Warner Music itself in having this video taken down. In the meantime, I've sent a note to the folks at Warner Music to get a comment... and will add it here should they ever reply. Update: We got an official "no comment." Glad they're really a part of the "conversation."

Filed Under: corey vidal, john williams, moosebutter, star wars, takedown, viral video
Companies: warner music group