Thursday, August 21, 2008

DMCA: copyright owners must consider fair use

Copyright owners must consider fair use before filing a DMCA takedown notice. The full decision is here. The basic upshot of this is that copyright owners are required to consider whether a use of their material would reasonably be considered fair use under copyright law. The DMCA requires that the copyright owner have a good-faith belief that the use is infringing before they can file a takedown notice, and if the use falls under fair use and a reasonable person would have concluded this beforehand then the "good-faith belief" test fails. That, BTW, leaves the copyright liable for damages and penalties if the target of the notice wants to push it. The downside, of course, is that showing bad faith is a difficult thing to do in court, but still it's nice to have the principle upheld.

The judge says he's not sanguine about the defendant's chances of proving bad faith on the part of the plaintiff. I'm not so sure, at least if the judge is unbiased about it. The infringement in question is a song playing in the background of a baby video posted to YouTube. The Supreme Court has set forth 4 factors to consider in determining fair use: the nature of the use (commercial vs. non-commercial), the nature of the infringed work, the amount and substantiality of the portion used and the effect of the infringement on the potential market for the work. It's going to be very hard for a record label to argue that people are going to put up with watching someone's baby video repeatedly just to save the cost of buying the song. They're also going to have a hard time arguing commercial use, YouTube may put ads on the page but the uploader doesn't get any money from them and has no control over them and the entity that does get the money (YouTube) isn't the one the plaintiff's making a claim against. Even the nature of the copyrighted work works against the label. The work is a song, and it's merely incidental background noise in a video whose point is to showcase the uploader's baby. The only factor that works anywhere near in the plaintiff's favor is the amount of the song audible, and that's countered by the fact that the song's purely incidental background. As I said, it's not likely anyone's going to look at this video mainly for the music, any more than anyone watches a football game mainly to see the advertisements pasted around the stadium. Given all that, if the defendant's got a good lawyer I think they can make a very strong case that plaintiffs couldn't reasonably have believed the use wouldn't meet the qualifications for fair use. And proceeding when you know or should know otherwise is the very definition of bad faith.

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