Fair use is primarily a copyright concept - not a trademark concept.
Fair use is a trademark concept that has nothing to do with the copyright concept of fair use. Not sure what your point is. Not only is fair use codified in the Lanham Act, there's a rich body of case law developing it. So it's not "primarily a copyright concept." It's a trademark concept, and it's a copyright concept. And the two have nothing to do with each other.
"Trademark fair use" does exist but usually is referred to in other ways - such as "nominative use".
The way I learned it, there's two types of fair use in trademark: (1) classic fair use, and (2) nominative fair use. Classic fair use is when the defendant uses plaintiff's mark to describe the defendant's own product. Nominative fair use is when the defendant uses the plaintiff's mark to refer to the plaintiff's product.
This article presented a chance to use the favorite phrase "fair use." And yet, no mention. Weird. For a blog that sees fair use everywhere, funny that it's not seen when it's actually present.
And again, Karl, I'm still not understanding your point about the source of the right. The way it works in practice is this: Either you have the right or you don't. It doesn't matter whether you have the right because of the Constitution, or a statute, or a contract, or an administrative determination, or whatever. Do you have the right? If so, it can be enforced.
If you can explain to me how the source of the right matters (as opposed to the fact of having the right), I'd love to hear it. I think you're just confused about this, though.
Copyright is not a "common law" right, at least according to Wheaton v. Peters. Copyright is purely a statutory right. Perhaps you're not talking about the concept of common law copyright?
You're thinking federal. There's still state common law copyright protection.
They are not simply "negative rights," but limitations on the government, put in place to prevent abuse of power.
Are you disagreeing with me just for the sake of disagreement? Feels like it. As I said, constitutional rights are usually stated as negatives. You have, and cannot, refute that point because it's true.
The term "constitutional right" is a bit misleading, IMO. The right to free speech is not created by the Constitution. It is not granted by the First Amendment. It is not guaranteed by acts of Congress. It is a fundamental human right, and liberty cannot exist without it.
But First Amendment rights are limited and non-absolute. They aren't some magical thing that exists above the law. In the US, the First Amendment guarantees free speech rights. In the end, people have the right to free speech. If they went to court to enforce that right, they would point to the First Amendment as being the source of that right.
Copyright is not. Copyright is created by acts of Congress. It does not exist outside of the copyright statutes. There is no "underlying" right that copyright "guarantees." This is precisely what Wheaton v. Peters decided. And, frankly, you know it.
And yet some states have common law copyright. In the end, people have copyright rights. If they went to court to enforce those rights, they would point to the copyright statutes or state common law.
A right is a right. There's nothing magical about certain types of rights. You go to court to enforce the right, and it gets enforced, no matter the source of the right.
It doesn't matter if the government believes bananas are protected speech. Anything expressive is free speech, even if you do it with a banana. If there was never a single court case involving expression with bananas, then expression with bananas would still be free speech, protected from government actions by the First Amendment.
You still are missing the point that "speech" today means way, way, way more than it did when the First Amendment was ratified. Research for yourself what the word meant back then and you'll see what I mean. There's lots of information out there. You'll also find that there's academic disagreement over exactly what it meant. But all agree that "speech" had a much narrower meaning back then.
It was a government mechanism (DMCA notice/takedown) that forced the website to remove the content.
No one is forced to respond to a DMCA takedown notice. Responding merely permits the service provider to enter the safe harbor. They can choose not to.
Correct me if I'm wrong, but isn't the whole point of fair use to avoid dragging into court every single case where a reasonably small portion of a licensed work is used? I mean, you don't see fox news issuing takedowns to thedailyshow.com for this very reason. It seems that, though not required by law as you said, common sense and good faith would lead one to weigh fair use on one hand vs. infringement on the other.
Not that common sense ever has anything to do with these matters.
I agree that the use here is probably fair and the better course would have been not to issue the takedown notice. But that's not the issue. The issue is whether it was subjective bad faith to do so. Considering that fair use is a defense and that the would-be plaintiff has a legitimate, nonfrivolous claim of infringement, I don't see how any would-be plaintiff could ever be in subjective bad faith so long as there's copying.
I think this case will set precedent, but I don't think many here will like the precedent's that set. That's one of the risks of being at the forefront of issues like the EFF. Their cases can backfire and create the opposite precedent that they want.
The test that the district court adopted here is that a factfinder might infer subjective bad faith given the fact that a right holder did not consider fair use before issuing a takedown notice. I know that bit has been championed by the anti-copyright crusaders, and rightfully so, but I think as the arstechnica piece pointed out--and as Mike is now apparently understanding as well--it's not much of a victory.
First of all, this is only the "law of the case." This case can be cited by other courts as being persuasive, and they can choose to follow it if they like, but no other court has to follow it. In fact, this very judge in the very next case can use a contrary test. It's precedent, and other courts might find it compelling and adopt its reasoning, but no other court has to do so.
Secondly, and more importantly, the test is subjective bad faith. This means basically that they have to issue the takedown notice knowing that it's completely bogus. Given the elusive nature of fair use, that's an incredibly high burden. So high in fact, that I cannot imagine a scenario where it would that way in practice.
And the discovery that commenced in the Lenz case demonstrates the point. UMG had a lawyer who set criteria for and supervised the employee who considered whether the use was authorized. Part of Lenz's argument is that considering whether it's authorized is incomplete unless fair use is also considered. But how could have UMG's counsel have known that there's a duty to consider fair use? No court before (or after, that I know of) has ever said that fair use must be considered before issuing a takedown notice.
It cannot be subjective bad faith to fail to discharge an unknown--and unknowable--duty. For Lenz to win, the factfinder would have to find as a fact that UMG knew it had to consider fair use, considered it, found it to be fair use, and then issued the notice anyway. Not gonna happen.
Ultimately, I don't think the court's test is going to be adopted anyway. I don't think fair use is a use authorized by law. It's a use permitted by law as an equitable defense to a prima facie case of infringement. I think it makes a lick of sense to say that a plaintiff like UMG can in good faith file a federal lawsuit for infringement based on a use like Lenz's, but then to say that filing a takedown notice upon the same information is a bad faith misrepresentation.
If the same facts support a lawsuit, then surely they support a takedown notice (which is intended to avoid the lawsuit, and is very beneficial to infringers everywhere who get away with infringement).
I have never found even one constitutional scholar who believes that the First Amendment created free speech rights. They all believe that the First Amendment was sanctioning an existing right.
In other words, free speech is not a statutory right, unlike copyright.
I can tell you that in law school we never use the term "inalienable right" unless we're talking about historical views. That's just an older way of looking at things. That said, I really don't understand your point. To use the parlance I'm more familiar with, free speech is a constitutional right and copyright is a statutory/common law right. But at the end of the day, both are rights.
Constitutional rights are typically phrased as a negative right: http://en.wikipedia.org/wiki/Negative_and_positive_rights Meaning, it's negative because it tells someone what they can't do, e.g., "Congress shall make no law . . . abridging the freedom of speech." But we don't usually talk about rights in the negative. We usually think of it as a "right to free speech," not as a "right to be free from laws that abridge speech."
Again though, I don't understand your point. So what if one is a constitutional right, guaranteed by the Constitution, and the other is a statutory right, guaranteed by statute? What's your point?
Also, I notice that you haven't mentioned even one case that ever claimed music was not protected speech. Perhaps that's because it was always protected speech. The law may have only recently sanctioned that protection, but it was always protected.
I don't believe such a case exists. Nor do I believe any case exists that says bananas are not protected speech. That doesn't mean that they are. The point is that "speech" had a much narrower meaning when the Amendment was ratified than it does today as the meaning of the Amendment has been expanded.
Can you cite anything, anywhere that says music was considered speech when the Amendment was ratified? Have you actually researched what the word "speech" meant when ratified? Don't just say "it was always protected speech" if you have nothing to back that up but your made-up opinion. Back it up!
So those who pirate the most also buy the most. So what? That doesn't lead to the conclusion that enforcement is counterproductive, which is the baseless claim Mike is making. It's possible that the pirates would buy even more if they weren't able to pirate.
But probably not better than the actual copyright lawyers that I know personally.
LOL! Nice deflection. I'll gladly go head to head with any of your copyright lawyer friends any day of the week. They surely focus on transactional issues, whereas I have the luxury of obsessing over the theory, doctrine, and jurisprudence.
Can you point me to any case where it said music was not protected speech?
I've looked in vain, and I can't find a single time where music in general was ever considered unprotected by the First Amendment.
Have you found even one constitutional scholar who agrees with you that the First Amendment has never been expanded? As you research that point, look up what "speech" meant when the Amendment was ratified. Therein lies your answer.
The First Amendment doesn't give way to copyright, copyright abridges the First Amendment. It actually violates it, but human rights mean little when weighed against the profits of business.
That makes no sense. If copyright abridged the First Amendment, copyright would be unconstitutional. The Supreme Court has rejected that argument, ergo, the supreme law of the land is that copyright does not abridge the First Amendment. The reasoning the Court has employed is that the internal safeguards of fair use and the idea-expression dichotomy make copyright constitutional.
You should know this. I've been debating you for years, and I know better than to trust your opinion of case law. The moment you bring up a case, I read it. It's how I know you're so often wrong.
I know you will never agree, but maybe, just maybe, because I have a formal education in law and you do not, I might understand the material better than you. For example, your claim that the meaning of the First Amendment has never changed is just laughable on its face. I challenge you to find anyone who agrees.
True. But if you complain to YouTube about a video posted there, and the law requires that they take it down, then it certainly is a First Amendment issue. The issue would be with the law, not YouTube themselves.
The law does not require YouTube to take it down, just as it doesn't require them to put it back up when given a counternotice. YouTube can allow whatever material it wants on its service.
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Fair use is a trademark concept that has nothing to do with the copyright concept of fair use. Not sure what your point is. Not only is fair use codified in the Lanham Act, there's a rich body of case law developing it. So it's not "primarily a copyright concept." It's a trademark concept, and it's a copyright concept. And the two have nothing to do with each other.
"Trademark fair use" does exist but usually is referred to in other ways - such as "nominative use".
The way I learned it, there's two types of fair use in trademark: (1) classic fair use, and (2) nominative fair use. Classic fair use is when the defendant uses plaintiff's mark to describe the defendant's own product. Nominative fair use is when the defendant uses the plaintiff's mark to refer to the plaintiff's product.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!
If you can explain to me how the source of the right matters (as opposed to the fact of having the right), I'd love to hear it. I think you're just confused about this, though.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!
You're thinking federal. There's still state common law copyright protection.
They are not simply "negative rights," but limitations on the government, put in place to prevent abuse of power.
Are you disagreeing with me just for the sake of disagreement? Feels like it. As I said, constitutional rights are usually stated as negatives. You have, and cannot, refute that point because it's true.
The term "constitutional right" is a bit misleading, IMO. The right to free speech is not created by the Constitution. It is not granted by the First Amendment. It is not guaranteed by acts of Congress. It is a fundamental human right, and liberty cannot exist without it.
But First Amendment rights are limited and non-absolute. They aren't some magical thing that exists above the law. In the US, the First Amendment guarantees free speech rights. In the end, people have the right to free speech. If they went to court to enforce that right, they would point to the First Amendment as being the source of that right.
Copyright is not. Copyright is created by acts of Congress. It does not exist outside of the copyright statutes. There is no "underlying" right that copyright "guarantees." This is precisely what Wheaton v. Peters decided. And, frankly, you know it.
And yet some states have common law copyright. In the end, people have copyright rights. If they went to court to enforce those rights, they would point to the copyright statutes or state common law.
A right is a right. There's nothing magical about certain types of rights. You go to court to enforce the right, and it gets enforced, no matter the source of the right.
It doesn't matter if the government believes bananas are protected speech. Anything expressive is free speech, even if you do it with a banana. If there was never a single court case involving expression with bananas, then expression with bananas would still be free speech, protected from government actions by the First Amendment.
You still are missing the point that "speech" today means way, way, way more than it did when the First Amendment was ratified. Research for yourself what the word meant back then and you'll see what I mean. There's lots of information out there. You'll also find that there's academic disagreement over exactly what it meant. But all agree that "speech" had a much narrower meaning back then.
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No one is forced to respond to a DMCA takedown notice. Responding merely permits the service provider to enter the safe harbor. They can choose not to.
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Not that common sense ever has anything to do with these matters.
I agree that the use here is probably fair and the better course would have been not to issue the takedown notice. But that's not the issue. The issue is whether it was subjective bad faith to do so. Considering that fair use is a defense and that the would-be plaintiff has a legitimate, nonfrivolous claim of infringement, I don't see how any would-be plaintiff could ever be in subjective bad faith so long as there's copying.
On the post: Why It's Almost Impossible To Get Punished For A Bogus DMCA Takedown
The test that the district court adopted here is that a factfinder might infer subjective bad faith given the fact that a right holder did not consider fair use before issuing a takedown notice. I know that bit has been championed by the anti-copyright crusaders, and rightfully so, but I think as the arstechnica piece pointed out--and as Mike is now apparently understanding as well--it's not much of a victory.
First of all, this is only the "law of the case." This case can be cited by other courts as being persuasive, and they can choose to follow it if they like, but no other court has to follow it. In fact, this very judge in the very next case can use a contrary test. It's precedent, and other courts might find it compelling and adopt its reasoning, but no other court has to do so.
Secondly, and more importantly, the test is subjective bad faith. This means basically that they have to issue the takedown notice knowing that it's completely bogus. Given the elusive nature of fair use, that's an incredibly high burden. So high in fact, that I cannot imagine a scenario where it would that way in practice.
And the discovery that commenced in the Lenz case demonstrates the point. UMG had a lawyer who set criteria for and supervised the employee who considered whether the use was authorized. Part of Lenz's argument is that considering whether it's authorized is incomplete unless fair use is also considered. But how could have UMG's counsel have known that there's a duty to consider fair use? No court before (or after, that I know of) has ever said that fair use must be considered before issuing a takedown notice.
It cannot be subjective bad faith to fail to discharge an unknown--and unknowable--duty. For Lenz to win, the factfinder would have to find as a fact that UMG knew it had to consider fair use, considered it, found it to be fair use, and then issued the notice anyway. Not gonna happen.
Ultimately, I don't think the court's test is going to be adopted anyway. I don't think fair use is a use authorized by law. It's a use permitted by law as an equitable defense to a prima facie case of infringement. I think it makes a lick of sense to say that a plaintiff like UMG can in good faith file a federal lawsuit for infringement based on a use like Lenz's, but then to say that filing a takedown notice upon the same information is a bad faith misrepresentation.
If the same facts support a lawsuit, then surely they support a takedown notice (which is intended to avoid the lawsuit, and is very beneficial to infringers everywhere who get away with infringement).
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!
In other words, free speech is not a statutory right, unlike copyright.
I can tell you that in law school we never use the term "inalienable right" unless we're talking about historical views. That's just an older way of looking at things. That said, I really don't understand your point. To use the parlance I'm more familiar with, free speech is a constitutional right and copyright is a statutory/common law right. But at the end of the day, both are rights.
Constitutional rights are typically phrased as a negative right: http://en.wikipedia.org/wiki/Negative_and_positive_rights Meaning, it's negative because it tells someone what they can't do, e.g., "Congress shall make no law . . . abridging the freedom of speech." But we don't usually talk about rights in the negative. We usually think of it as a "right to free speech," not as a "right to be free from laws that abridge speech."
Again though, I don't understand your point. So what if one is a constitutional right, guaranteed by the Constitution, and the other is a statutory right, guaranteed by statute? What's your point?
Also, I notice that you haven't mentioned even one case that ever claimed music was not protected speech. Perhaps that's because it was always protected speech. The law may have only recently sanctioned that protection, but it was always protected.
I don't believe such a case exists. Nor do I believe any case exists that says bananas are not protected speech. That doesn't mean that they are. The point is that "speech" had a much narrower meaning when the Amendment was ratified than it does today as the meaning of the Amendment has been expanded.
Can you cite anything, anywhere that says music was considered speech when the Amendment was ratified? Have you actually researched what the word "speech" meant when ratified? Don't just say "it was always protected speech" if you have nothing to back that up but your made-up opinion. Back it up!
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LOL! Nice deflection. I'll gladly go head to head with any of your copyright lawyer friends any day of the week. They surely focus on transactional issues, whereas I have the luxury of obsessing over the theory, doctrine, and jurisprudence.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!
I've looked in vain, and I can't find a single time where music in general was ever considered unprotected by the First Amendment.
Have you found even one constitutional scholar who agrees with you that the First Amendment has never been expanded? As you research that point, look up what "speech" meant when the Amendment was ratified. Therein lies your answer.
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Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!
One day "speech" doesn't include music, then the next it does. That indicates that the meaning of the word "speech" changed.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!
That makes no sense. If copyright abridged the First Amendment, copyright would be unconstitutional. The Supreme Court has rejected that argument, ergo, the supreme law of the land is that copyright does not abridge the First Amendment. The reasoning the Court has employed is that the internal safeguards of fair use and the idea-expression dichotomy make copyright constitutional.
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I know you will never agree, but maybe, just maybe, because I have a formal education in law and you do not, I might understand the material better than you. For example, your claim that the meaning of the First Amendment has never changed is just laughable on its face. I challenge you to find anyone who agrees.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!
The law does not require YouTube to take it down, just as it doesn't require them to put it back up when given a counternotice. YouTube can allow whatever material it wants on its service.
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