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>Edit: and to actually get to will_brown's point: it would therefore technically not be improper to serve a takedown notice on something that would be covered b

>Edit: and to actually get to will_brown's point: it would therefore technically not be improper to serve a takedown notice on something that would be covered by fair use, as technically fair use is infringement (otherwise you wouldn't need a "fair use" of it). I do not think that is correct. According to 17 U.S.C. § 107: Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. [Emphasis mine]

magicalist 14y ago
So, this kind of comes down to sloppy wording. You do need to establish that a party is using something that you have a copyright claim to in a way that violates your exclusive rights as a copyright holder (17 USC § 106), otherwise there's no reason to establish fair use, because you have no grounds to sue for infringement in the first place. However, if you fall under fair use protections, you are not infringing that copyright, because you have "fair use" of that copyrighted work in that particular usage. However, my point was more what I was getting at in my response to will_brown. Fair use is a determination made by a judge. All you have to do is disagree that the usage of a copyrighted work is fair use, and it is infringement again. Just the threat of a lawsuit (or stretching out a lawsuit through long discovery and threats of appeals) can be enough to stifle speech, and the legal remedies are not many, and are expensive (anti-SLAPP laws are difficult to get right and are not widespread in the US for a reason), without even a strong guarantee that you'll make your money back, let alone your time, stress, etc. The DMCA in theory has a built in safeguard, but the "knowingly" is so tricky to demonstrate, and any meaningful damages are very difficult to establish in many takedown cases. Moreover, it's been well established in practice that you can get away with many invalid and valid-but-obviously-fair-use takedown notices with no repercussions, even if you were plainly very very wrong. AFAIK, many attorneys won't even try to make a case for that getting damages that way. For example, the EFF has been fighting for damages in one DMCA case against Universal Media Group that has been going on for six years, and not only has the judge definitively said that the EFF would have to demonstrate "some actual knowledge of misrepresentation” on UMG's part (while also writing that there's no such thing as "self evident" fair use, btw), but, because it was a non-monetized youtube video, the damages that can be won will amount to "at least minimal expenses for electricity to power [Lenz's] computer, Internet and telephone, bills, and the like", while legal fees would be limited to the 4.25 hours spent filing the original counter notice, amounting to $1275 for the EFF[1] since the casework since then have been pro bono. So it's not improper in the sense that it is how the legal system is actually functioning today. [1] http://arstechnica.com/tech-policy/2013/01/six-year-old-dancing-baby-lawsuit-set-for-jury-trial/ http://arstechnica.com/tech-policy/2013/01/six-year-old-danc...

magicalist 14y ago

So, this kind of comes down to sloppy wording. You do need to establish that a party is using something that you have a copyright claim to in a way that violates your exclusive rights as a copyright holder (17 USC § 106), otherwise there's no reason to establish fair use, because you have no grounds to sue for infringement in the first place. However, if you fall under fair use protections, you are not infringing that copyright, because you have "fair use" of that copyrighted work in that particular usage. However, my point was more what I was getting at in my response to will_brown. Fair use is a determination made by a judge. All you have to do is disagree that the usage of a copyrighted work is fair use, and it is infringement again. Just the threat of a lawsuit (or stretching out a lawsuit through long discovery and threats of appeals) can be enough to stifle speech, and the legal remedies are not many, and are expensive (anti-SLAPP laws are difficult to get right and are not widespread in the US for a reason), without even a strong guarantee that you'll make your money back, let alone your time, stress, etc. The DMCA in theory has a built in safeguard, but the "knowingly" is so tricky to demonstrate, and any meaningful damages are very difficult to establish in many takedown cases. Moreover, it's been well established in practice that you can get away with many invalid and valid-but-obviously-fair-use takedown notices with no repercussions, even if you were plainly very very wrong. AFAIK, many attorneys won't even try to make a case for that getting damages that way. For example, the EFF has been fighting for damages in one DMCA case against Universal Media Group that has been going on for six years, and not only has the judge definitively said that the EFF would have to demonstrate "some actual knowledge of misrepresentation” on UMG's part (while also writing that there's no such thing as "self evident" fair use, btw), but, because it was a non-monetized youtube video, the damages that can be won will amount to "at least minimal expenses for electricity to power [Lenz's] computer, Internet and telephone, bills, and the like", while legal fees would be limited to the 4.25 hours spent filing the original counter notice, amounting to $1275 for the EFF[1] since the casework since then have been pro bono. So it's not improper in the sense that it is how the legal system is actually functioning today. [1] http://arstechnica.com/tech-policy/2013/01/six-year-old-dancing-baby-lawsuit-set-for-jury-trial/ http://arstechnica.com/tech-policy/2013/01/six-year-old-danc...