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My RSS popped up with this article in Wired</a> a few hours ago about this decision in which a federal judge ruled that "copyright owners must consider "fair use" of their works before sending takedown notices to online video-sharing sites."

In other words, if there is a legitimate and obvious fair use argument to be made by someone who is not the copyright owner, said owner must

As the court said, "fair use is a lawful use of a copyright."

Let's look at that again

Ahem. Sorry about that. I thought it was important to repeat it.

Let's go on. The court further said:
Accordingly, in order for a copyright owner to proceed under the DMCA with “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,” the owner must evaluate whether the material makes fair use of the copyright. 17 U.S.C. § 512(c)(3)(A)(v). An allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim pursuant to Section 512(f) of the DMCA.

What might this mean?

The impact could be twofold:
1. A corporation or individual copyright owner in the Northern District of California (or, arguably, in all of California) must now determine whether there may be a legitimate fair use claim made by someone creating a derivative work that incorporates said corp/individual's copyrighted work. If there is such a claim to be made, a DMCA - Digital Millennium Copyright Act takedown notice cannot be legitimately sent.

2. If such a notice is sent, and said legitimate fair use claim is made by the alleged "infringer", victims of baseless and meritless takedown notices can seek damages - ie money - from the claimer.

These are both significant deterrents to unlawful DMCA claims, and will hopefully reduce the number that are sent, and also provide further grounds for fair users to argue that DMCA takedown demands against works that make "fair use" of other copyrighted works should be refused.

And, of course, the statement by the court that fair use is is IS a lawful use of a copyright will make it clearer in analogous situations that there are (really are, truly are, legally are) derivative/transformative/fair uses of someone else's copyrighted works without a license.

ETA: More discussion of this at Dragon*Con next Friday at 530 PM when I'm part of a panel on The Law of Fandom, FYI.



( 1 comment — Leave a comment )
Aug. 21st, 2008 02:35 pm (UTC)
Squeeee! \o/

Now, if I can just figure out how to explain that in 25 words or less, so my non-copyright-law-fanatic friends' eyes don't glaze over when I tell them what I'm all excited about...
( 1 comment — Leave a comment )
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