Digital Music News Explains To Apple What Fair Use Is, Reposts Contract That Apple Tried To DMCA Away

from the do-you-want-to-litigate? dept

Back in October, we wrote about the ridiculous decision by Apple to make a questionable copyright claim on a copy of its iTunes Radio contract, that had been posted to Scribd by the site Digital Music News, for the purpose of analyzing and discussing the contract. As we pointed out at the time, it was difficult to see how this was a legitimate DMCA takedown. The publication was in the public interest and was used for discussion, commentary and critique. The copyright on the contract, whatever might exist, would be very thin. And, of course, there's no "market" for the contract itself, so posting it wouldn't undermine the market at all.

Paul Levy of Public Citizen, representing Digital Music News (disclaimer: Levy has represented us on a few occasions in the past, and I introduced Levy to DMN over a different matter a while back), has now sent Apple a letter, explaining the basics of fair use and why Apple is wrong to issue a bogus takedown.

Apple should know better. Although Apple may not have been pleased by DMN's coverage, the solution was not to suppress the information that DMN had provided. Certainly, the contract includes sufficient original expression to be copyrighted, but the posting was plainly fair use. The contract was posted for reasons of newsworthiness, a transformative and essentially non-commercial use. The posting of the contract in now way interfered with the market for the document, which is not sold, after all. Indeed, the purpose of the takedown was not to protect legitimate copyright interests, but to suppress criticism, which could well be deemed copyright misuse. In issuing the DMCA takedown, Apple was required to consider the fair use reasons for the posting, and the filing of the notice implicitly represented that the posting was not fair use. Consequently, we believe that the takedown was wrongful.

Of course, rather than directly challenging the takedown, DMN has decided to take a different path. Rather than posting the contract to Scribd, it has placed it directly on its own server and written a new article about it (comparing it to Pandora's contract terms -- and, actually, Apple comes out rather favorably in comparison). Levy suggests to Apple's lawyers that they might want to think carefully before trying to issue another DMCA notice about that contract.

We are, however, focused on the future. Today, DMN has published a new story entitled Who's Screwing You Worse: iTunes Radio, or Pandora... and it has included links to the contract which is now hosted on its own server.... In the event Apple serves a DMCA notice on DMN, or on its upstream provider, or if Apple takes any other action against the availability of the contract, we will assume that Apple has decided to litigate the fair use issue. We will be ready to accommodate such a choice.

Your move, Apple.

Filed Under: contracts, copyright, fair use, itunes, itunes radio
Companies: apple, digital music news