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> Legally the company is allowed to do this of course, as they own the rights. Isn't this textbook fair use? Nothing about these clips being shared on Twitter

> Legally the company is allowed to do this of course, as they own the rights. Isn't this textbook fair use? Nothing about these clips being shared on Twitter replaces the viewing experience of Cuties. The tweets are definitely transformative and provide a critique of the film. Doesn't copyright law explicitly permit this use of copyrighted works?

jerf 6y ago
Not only is it textbook fair use, this is exactly why copyright law has a fair use exemption. It does not exist for you to selectively manipulate the public commons by removing only negative reviews that happened to use small snippets of the original material. This is why reviews are protected. The DMCA is a bit broken this way; in theory it's balanced by the ability for these people to counternotice but in practice that's taking on an absurd amount of liability on a consumer to do so, so only a very foolhardy consumer would ever do it and it may as well not exist.
- labawi 6y ago
  In theory, a DMCA notice requires a statement of Netflix good-faith belief, that the content is infringing, under the penalty of perjury, and should be triable - though good luck going after a G$ company.
  - nchelluri 6y ago
    What is a G$ company? I've never heard the term before.
    - pherrephatta 6y ago
      A billion dollar company. The term probably[0] comes from the application of metric prefixes to monetary values. 10^9 -> Giga (G) -> 1 000 000 000 10^6 -> Mega (M) -> 1 000 000 10^3 -> Kilo (K) -> 1 000 [0] https://en.wikipedia.org/wiki/Metric_prefix https://en.wikipedia.org/wiki/Metric_prefix
    - offmycloud 6y ago
      Gigabucks, a company worth over a billion dollars.
judge2020 6y ago
Unfortunately the only way to be "sure" (it's obvious fair use) is to go to court over it unless Twitter wants to be liable for these users' content by not honoring these takedowns.
- saurik 6y ago
  And the punishment to Netflix once you win in court is just damages (good luck showing any actual serious large damages here) and legal costs... there should be a massive fine and a loss of DMCA Section 512 expedited takedown privileges if you use it incorrectly.
  - verroq 6y ago
    Punitive damages is a thing.
    - User23 6y ago
      Juries don’t like awarding them. The cases you hear about are newsworthy precisely because it’s so unusual.
      - bluGill 6y ago
        If there were many of them either the supreme court or congress will likely limit them. That isn't to say either of the above think they are wrong so much as it is easy to see how they can be abused.
        dragonwriter 6y ago
        > If there were many of them either the supreme court or congress will likely limit them. The Supreme Court has suggested a soft limit, suggesting, IIRC, that it is rare that an award of more than a single digit multiple of actual damages will satisfy due process analysis.
    - dragonwriter 6y ago
jedimastert 6y ago
A DMCA being wrongfully given doesn't put Twitter on the hook for following the takedown. Twitter decides whether or not it's worth the legal costs of ignoring a DMCA. Even if the issuer is very clearly in the wrong, it still costs money to do anything about it in court
ballenf 6y ago
If Netflix' position is that the most provocative clips or screenshots reduce the market for the film, doesn't this undermine their claim that the prurient aspect of the film is secondary to the commentary portion? To put it another way, Netflix is taking a position closer to Playboy than the Discovery Channel in terms of the positioning of the film. It is relatively harder to argue fair use in the use of Playboy images or porn clips than non-"adult" material. Because the image/clip itself undermines the market value of the work, regardless of the motivation or intent of the critic.
- deleted 6y ago
  [deleted]
kmeisthax 6y ago
Yes - in fact, the fact that they're negative makes it more fair use. Hell, there's a right-wing YouTuber who got away with reposting an entire left-wing YouTuber's video and just changing the title. The title change alone made it fair use and the left-winger who sued the right-winger now owes the right-winger money for filing such a frivolous lawsuit.
dragonwriter 6y ago
> Isn't this textbook fair use? Debatable. A good faith case can be made that its not. > Nothing about these clips being shared on Twitter replaces the viewing experience of Cuties. "Replacing the viewing experience" isn't necessary to be outside of fair use, and the work at issue is probably the trailer itself, not Cuties. Which matters a lot when you look at the "amount and substantiality" prong of fair use analysis. > The tweets are definitely transformative and provide a critique of the film. Sure, I don't think anyone would argue that the purpose prong of fair use is in dispute. > Doesn't copyright law explicitly permit this use of copyrighted works? There is very little explicit about the "fair use" defense; even how the four prongs of the test interact isn't explicit.

jerf 6y ago

Not only is it textbook fair use, this is exactly why copyright law has a fair use exemption. It does not exist for you to selectively manipulate the public commons by removing only negative reviews that happened to use small snippets of the original material. This is why reviews are protected. The DMCA is a bit broken this way; in theory it's balanced by the ability for these people to counternotice but in practice that's taking on an absurd amount of liability on a consumer to do so, so only a very foolhardy consumer would ever do it and it may as well not exist.

labawi 6y ago
In theory, a DMCA notice requires a statement of Netflix good-faith belief, that the content is infringing, under the penalty of perjury, and should be triable - though good luck going after a G$ company.
- nchelluri 6y ago
  What is a G$ company? I've never heard the term before.
  - pherrephatta 6y ago
    A billion dollar company. The term probably[0] comes from the application of metric prefixes to monetary values. 10^9 -> Giga (G) -> 1 000 000 000 10^6 -> Mega (M) -> 1 000 000 10^3 -> Kilo (K) -> 1 000 [0] https://en.wikipedia.org/wiki/Metric_prefix https://en.wikipedia.org/wiki/Metric_prefix
  - offmycloud 6y ago
    Gigabucks, a company worth over a billion dollars.

judge2020 6y ago

Unfortunately the only way to be "sure" (it's obvious fair use) is to go to court over it unless Twitter wants to be liable for these users' content by not honoring these takedowns.

saurik 6y ago
And the punishment to Netflix once you win in court is just damages (good luck showing any actual serious large damages here) and legal costs... there should be a massive fine and a loss of DMCA Section 512 expedited takedown privileges if you use it incorrectly.
- verroq 6y ago
  Punitive damages is a thing.
  - User23 6y ago
    Juries don’t like awarding them. The cases you hear about are newsworthy precisely because it’s so unusual.
    - bluGill 6y ago
      If there were many of them either the supreme court or congress will likely limit them. That isn't to say either of the above think they are wrong so much as it is easy to see how they can be abused.
      - dragonwriter 6y ago
        > If there were many of them either the supreme court or congress will likely limit them. The Supreme Court has suggested a soft limit, suggesting, IIRC, that it is rare that an award of more than a single digit multiple of actual damages will satisfy due process analysis.
  - dragonwriter 6y ago

jedimastert 6y ago

A DMCA being wrongfully given doesn't put Twitter on the hook for following the takedown. Twitter decides whether or not it's worth the legal costs of ignoring a DMCA. Even if the issuer is very clearly in the wrong, it still costs money to do anything about it in court

ballenf 6y ago

If Netflix' position is that the most provocative clips or screenshots reduce the market for the film, doesn't this undermine their claim that the prurient aspect of the film is secondary to the commentary portion? To put it another way, Netflix is taking a position closer to Playboy than the Discovery Channel in terms of the positioning of the film. It is relatively harder to argue fair use in the use of Playboy images or porn clips than non-"adult" material. Because the image/clip itself undermines the market value of the work, regardless of the motivation or intent of the critic.

deleted 6y ago
[deleted]

kmeisthax 6y ago

Yes - in fact, the fact that they're negative makes it more fair use. Hell, there's a right-wing YouTuber who got away with reposting an entire left-wing YouTuber's video and just changing the title. The title change alone made it fair use and the left-winger who sued the right-winger now owes the right-winger money for filing such a frivolous lawsuit.

dragonwriter 6y ago

> Isn't this textbook fair use? Debatable. A good faith case can be made that its not. > Nothing about these clips being shared on Twitter replaces the viewing experience of Cuties. "Replacing the viewing experience" isn't necessary to be outside of fair use, and the work at issue is probably the trailer itself, not Cuties. Which matters a lot when you look at the "amount and substantiality" prong of fair use analysis. > The tweets are definitely transformative and provide a critique of the film. Sure, I don't think anyone would argue that the purpose prong of fair use is in dispute. > Doesn't copyright law explicitly permit this use of copyrighted works? There is very little explicit about the "fair use" defense; even how the four prongs of the test interact isn't explicit.