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Universal Says It Can Ignore Fair Use In DMCA Takedowns
from the and-it-might-be-right dept
Last year, we wrote about the case where Universal Music sent a takedown notice to YouTube
when a woman posted a short (29-second) video of her toddler running around with a Prince
song (barely audible) in the background. Universal backed down when challenged on the
takedown notice, but the woman (with the help of the EFF) hit back and have sued Universal
Music for a false takedown.
The DMCA has provisions for a copyright holder to assert ownership, at which point the
service provider needs to takedown the content. Whoever posted the content can protest
that the content was legally posted -- which is exactly what happened in this case.
However, the DMCA also says that filing a false DMCA notice opens one up to damages from
those whose content was taken down. This was in an effort to discourage false DMCA
notices. This provision was used last year against Viacom for its false takedowns on
satirical clips of the Colbert Report.
The question then, is whether or not filing a takedown notice on content that is used in a
way consistent with "fair use" is a misuse or not. Universal Music's claim is that it is not reasonable
for the copyright holder to take fair use into consideration before sending a takedown
notice. At a first pass, it sounds like the judge agrees.
As ridiculous as this whole situation is, the judge and Universal Music may be correct
under the existing law. There isn't anything in the law that says the copyright holder
needs to take into account the user's defenses. It just says they need to be the
legitimate copyright holder (which Universal Music is).
The real problem, then, in this story isn't Universal Music's actions (though Universal
was acting in a rather heavy handed manner in getting the video taken down), but with the
DMCA itself that forces a takedown before the user gets to respond with a defense. It's
this "notice and takedown" provision that's a problem. If, instead, we had a "notice and
notice" provision that allowed the user to respond before the takedown occurred, it would
be a lot more reasonable and would avoid ridiculous situations such as this one.
