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> You either have 100% certainty you are the rights holder and 100% accuracy, or you’re abusing the system. Full stop. Sorry, but how can you be 100% certain i

> You either have 100% certainty you are the rights holder and 100% accuracy, or you’re abusing the system. Full stop. Sorry, but how can you be 100% certain in a system where fair use exists?

wnevets 3y ago
Are fair use exclusions being considered as bogus? When I hear bogus I assume that means they never had any rights over the content to begin with.
- deleted 3y ago
  [deleted]
- rimunroe 3y ago
  Two people can reasonably disagree on who owns the rights to a derivative work, can't they?
  - wnevets 3y ago
    They can but that isn't what is happening according to the article. > The notice listed three URLs which needed to be “disabled immediately” along with a statement that the “information in the notification is accurate.” Unfortunately, we were unable to comply with the takedown demands because the URLs provided were not for TorrentFreak.com but an entirely different domain that we’d never heard of, under someone else’s control. I don't consider that a reasonable disagreement, I consider that a bogus claim.
    - SpicyLemonZest 3y ago
      How can you be confident it's a bogus claim? If, for example, the "entirely different domain" provided a TorrentFreak email address as their contact info (presumably along with all the other assets they copied from TorrentFreak) - that seems like a perfectly reasonable mistake.
      - wnevets 3y ago
        > one with our logo, authors’ names, and sundry other pieces of information removed If they made the effort to remove that information why assume they left the contact info? Either way this absolutely wasn't a case of fair use. They sent the claims to the wrong people.
    - rimunroe 3y ago
      > They can but that isn't what is happening according to the article. I'm aware, but I don't see how that's relevant to these comments. Someone proposed a system to help with this problem (requiring a fee to file a takedown), and now we're discussing the issues with such a system. Those issues extend beyond the cases discussed in the article.
- ascagnel_ 3y ago
  Fair use is an affirmative defense — you don’t get to make that claim until you’re in court (and even then, a judge has to sign off on the claim). And making a fair use defense ipso facto is an admission of using the work without permission (and thus making the preceding DMCA takedown valid).
  - hn_acker 3y ago
    > And making a fair use defense ipso facto is an admission of using the work without permission (and thus making the preceding DMCA takedown valid). Not quite right. Using work without permission is not the same as infringing on the copyright on the work, and a DMCA is a claim of infringement. Fair use can only be used as an affirmative defense, as you noted; only a court decides whether a use of a copyrighted work is fair use. But formally, fair use is not infringement according to the Ninth Circuit in Lenz v. Universal Music Corp. (2015) [1]: > "Because 17 U.S.C. § 107[9] created a type of non-infringing use, fair use is 'authorized by the law' and a copyright holder must consider the existence of fair use before sending a takedown notification under § 512(c)." Not that the Lenz ruling helped very much in practice. To meet the Lenz standard, the sender of the DMCA notice can claim in court that they believed in good faith that the use of the copyrighted work was not fair use. The only part of the initial DMCA notice that the sender writes under penalty of perjury is the claim of being the copyright holder or someone authorized to send the notice on behalf of the copyright holder [2]: > (3)Elements of notification.— > (A)To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following: [omitted] (vi)A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. In contrast, a party sending a counter notice - which they might be too intimidated to do in the first place, and otherwise happens before the rightsholder initiates court precedings - must dispute the initial DMCA notice under penalty of perjury [2]: > (3)Contents of counter notification.—To be effective under this subsection, a counter notification must be a written communication provided to the service provider’s designated agent that includes substantially the following: [omitted] > (C)A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled. The safest response by far for the recipient of the DMCA notice is to resign from contesting it i.e. let the service provider permanently remove the material. [1] https://en.wikipedia.org/wiki/Lenz_v._Universal_Music_Corp https://en.wikipedia.org/wiki/Lenz_v._Universal_Music_Corp. [2] https://www.law.cornell.edu/uscode/text/17/512 https://www.law.cornell.edu/uscode/text/17/512
patmcc 3y ago
If I own Star Wars, and someone does a review on YT that has many clips from it, I am 100% certain I'm the rights owner and hold copyright on those clips. I don't know if it's fair use, but that's not what the DMCA requires. Now, if I submit a DMCA notice against a Star Trek review (that has no Star Wars clips), that's an entirely different thing. I think we should be extremely harsh on the latter.
- MichaelZuo 3y ago
  The categorization that you propose also cannot be 100% accurate, probably not even 99.9% accurate.
  - patmcc 3y ago
    Why not? Are we to believe copyright owners can't reliably watch a video (or whatever) and know if it contains any of their content? Again, this is separate from the fair use question. I'm saying if the owner of Star Wars files a DMCA notice against some guy reading Hamlet in an empty room, we should have little patience for that.
    - rimunroe 3y ago
      Say someone makes a fan vid using clips from Star Wars, receives a DMCA complaint from Disney, and then successfully appeals that takedown on fair use grounds. In this case, would Disney be penalized? If they wouldn't be penalized, why? If it's because Disney owns the rights to Star Wars, how would that be discovered? Making a complaint when you don't have a good faith belief you own the copyright to it already caries the penalty of perjury. Would the cost of this new penalty be more than that? If they would get penalized, then how is the existence of fair use not relevant as far as the risk to copyright holders is concerned?
    - MichaelZuo 3y ago
      Because... of human error? Is there something unclear about the fact that humans are not perfect machines of categorization and labelling?

> You either have 100% certainty you are the rights holder and 100% accuracy, or you’re abusing the system. Full stop. Sorry, but how can you be 100% certain in a system where fair use exists?

wnevets 3y ago

Are fair use exclusions being considered as bogus? When I hear bogus I assume that means they never had any rights over the content to begin with.

deleted 3y ago
[deleted]
rimunroe 3y ago
Two people can reasonably disagree on who owns the rights to a derivative work, can't they?
- wnevets 3y ago
  They can but that isn't what is happening according to the article. > The notice listed three URLs which needed to be “disabled immediately” along with a statement that the “information in the notification is accurate.” Unfortunately, we were unable to comply with the takedown demands because the URLs provided were not for TorrentFreak.com but an entirely different domain that we’d never heard of, under someone else’s control. I don't consider that a reasonable disagreement, I consider that a bogus claim.
  - SpicyLemonZest 3y ago
    How can you be confident it's a bogus claim? If, for example, the "entirely different domain" provided a TorrentFreak email address as their contact info (presumably along with all the other assets they copied from TorrentFreak) - that seems like a perfectly reasonable mistake.
    - wnevets 3y ago
      > one with our logo, authors’ names, and sundry other pieces of information removed If they made the effort to remove that information why assume they left the contact info? Either way this absolutely wasn't a case of fair use. They sent the claims to the wrong people.
  - rimunroe 3y ago
    > They can but that isn't what is happening according to the article. I'm aware, but I don't see how that's relevant to these comments. Someone proposed a system to help with this problem (requiring a fee to file a takedown), and now we're discussing the issues with such a system. Those issues extend beyond the cases discussed in the article.
ascagnel_ 3y ago
Fair use is an affirmative defense — you don’t get to make that claim until you’re in court (and even then, a judge has to sign off on the claim). And making a fair use defense ipso facto is an admission of using the work without permission (and thus making the preceding DMCA takedown valid).
- hn_acker 3y ago
  > And making a fair use defense ipso facto is an admission of using the work without permission (and thus making the preceding DMCA takedown valid). Not quite right. Using work without permission is not the same as infringing on the copyright on the work, and a DMCA is a claim of infringement. Fair use can only be used as an affirmative defense, as you noted; only a court decides whether a use of a copyrighted work is fair use. But formally, fair use is not infringement according to the Ninth Circuit in Lenz v. Universal Music Corp. (2015) [1]: > "Because 17 U.S.C. § 107[9] created a type of non-infringing use, fair use is 'authorized by the law' and a copyright holder must consider the existence of fair use before sending a takedown notification under § 512(c)." Not that the Lenz ruling helped very much in practice. To meet the Lenz standard, the sender of the DMCA notice can claim in court that they believed in good faith that the use of the copyrighted work was not fair use. The only part of the initial DMCA notice that the sender writes under penalty of perjury is the claim of being the copyright holder or someone authorized to send the notice on behalf of the copyright holder [2]: > (3)Elements of notification.— > (A)To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following: [omitted] (vi)A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. In contrast, a party sending a counter notice - which they might be too intimidated to do in the first place, and otherwise happens before the rightsholder initiates court precedings - must dispute the initial DMCA notice under penalty of perjury [2]: > (3)Contents of counter notification.—To be effective under this subsection, a counter notification must be a written communication provided to the service provider’s designated agent that includes substantially the following: [omitted] > (C)A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled. The safest response by far for the recipient of the DMCA notice is to resign from contesting it i.e. let the service provider permanently remove the material. [1] https://en.wikipedia.org/wiki/Lenz_v._Universal_Music_Corp https://en.wikipedia.org/wiki/Lenz_v._Universal_Music_Corp. [2] https://www.law.cornell.edu/uscode/text/17/512 https://www.law.cornell.edu/uscode/text/17/512

patmcc 3y ago

If I own Star Wars, and someone does a review on YT that has many clips from it, I am 100% certain I'm the rights owner and hold copyright on those clips. I don't know if it's fair use, but that's not what the DMCA requires. Now, if I submit a DMCA notice against a Star Trek review (that has no Star Wars clips), that's an entirely different thing. I think we should be extremely harsh on the latter.

MichaelZuo 3y ago
The categorization that you propose also cannot be 100% accurate, probably not even 99.9% accurate.
- patmcc 3y ago
  Why not? Are we to believe copyright owners can't reliably watch a video (or whatever) and know if it contains any of their content? Again, this is separate from the fair use question. I'm saying if the owner of Star Wars files a DMCA notice against some guy reading Hamlet in an empty room, we should have little patience for that.
  - rimunroe 3y ago
    Say someone makes a fan vid using clips from Star Wars, receives a DMCA complaint from Disney, and then successfully appeals that takedown on fair use grounds. In this case, would Disney be penalized? If they wouldn't be penalized, why? If it's because Disney owns the rights to Star Wars, how would that be discovered? Making a complaint when you don't have a good faith belief you own the copyright to it already caries the penalty of perjury. Would the cost of this new penalty be more than that? If they would get penalized, then how is the existence of fair use not relevant as far as the risk to copyright holders is concerned?
  - MichaelZuo 3y ago
    Because... of human error? Is there something unclear about the fact that humans are not perfect machines of categorization and labelling?