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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). No that is NOT my point, in fact I specifically said: "it would still be improper to try to enforce a CR when the 'alleged' infringement is obviously permissible under the Fair Use Doctrine". Although I think you knew that and did not intent to include the word "not" in the above statement, in which case, yes, it is improper to send out a DMCA Notice when you know the alleged CR is being used permissibly under Fair Use. The same logic follows for all CR law, and law in general as a lawyer may not bring a case they know is frivolous or state a claim upon which relief can be granted. Improper behavior of this kind can open the door to Bar complaints against the lawyer; potential causes of action or sanctions against their client; and the awarding of attorney's fees against both the client and attorney personally. >GoPro could then sue DigitalRev and/or Softlayer, who could then use fair use as a defense, but it would proceed as in any copyright infringement suit. >If the complaining party then filed suit (against the poster, not the hoster), they would have to demonstrate infringement and the poster would have to demonstrate fair use (or the judge could throw it out if it was obvious). Yes, Fair Use is a defense that would come into play in Court. However, keep in mind a Judge can award attorneys fees and if any set of facts supports awarding fees it is where: 1.) GoPro is improperly trying to use the DMCA Notice to enforce TM (assume there are valid CR also), 2. I am sure DigitalRev will respond to the DMCA Notice and the record will reflect DigitalRev explained to GoPro why this is Fair Use before any lawsuit was filed and 3.) any reasonable attorney should have known using a CR in a product review is Fair Use. Thus, Fair Use can be very powerful in the case of a DMCA, even before the case is filed, at least a case with these facts, because it creates a record that the party knew or should have known the case was frivolous before filing. Attorney's know this and must advise their clients accordingly - a party will be less likely to file a CR infringement case if your attorney told is telling you the alleged violation is permissible under Fair Use and as such you are going to be exposed to paying the other parties fees? Moreover, what attorney would expose themselves to sanctions and paying attorney's fees, which they would do their client has nothing but frivolous arguments (not supported by fact or law) why this is not Fair Use? See how powerful alleging Fair Use can be on a DMCA matter before a case is even filed?

magicalist 14y ago
> No that is NOT my point, in fact I specifically said: "it would still be improper to try to enforce a CR when the 'alleged' infringement is obviously permissible under the Fair Use Doctrine". Although I think you knew that and did not intent to include the word "not" in the above statement, in which case, yes, it is improper to send out a DMCA Notice when you know the alleged CR is being used permissibly under Fair Use. Sorry, my response was confusing. By "to actually get to will_brown's point" I meant "to address" your point, because then I did mean to disagree with you :) I agree with you that fair use is almost certainly considered by attorneys before advising about filing suit, but unfortunately in practice, the repercussions for filing suit while on the wrong side of even obvious fair use are unlikely enough that it often is done. There are of course always going to be legitimate disagreements over what constitutes "obviously permissible" under fair use, and cases that seem obvious to some will still end up in court. But there are many, many flagrant abuses of the system, under the same kind of incentives that give us SLAPPs, with the same issues of not enough legal tools to fight them without also having plenty of money to back you up. For some examples, check out this EFF article[1] after Rush Limbaugh used the DMCA last year to take down clips from his show used to criticize what he said after the whole Sandra Fluke testimony thing. It also includes a host of other examples of people using takedown notices in this way, from Uri Geller to network news programs. It highlights the example of Michael Savage v the Council on American–Islamic Relations, where Savage did take them all they way to court after the notice/counternotice dance, the judge did dismiss the claims under fair use, but did not award attorneys fees. If CAIR had instead been an individual or a poor advocacy group, it's likely that Michael Savage would still have taken them to court, but there would be huge disincentives for that other party to allow the situation to escalate to that level. Better to not file a counternotice and just accept defeat than go into massive debt (hence the comparison to SLAPPs). In any case, I do agree with you that that's how the law is structured, and there are likely many ethical lawyers out there going through exactly that decision process, and we never hear about it. My point is merely that, like the "knowingly materially misrepresent" clause in the DMCA, the disincentives to being a bad actor are often toothless (and just the threat of a fight are enough to prevent people from even getting to the stage where they do have any legal remedies), so there are plenty of bad actors. And unfortunately, the people most likely to want to trample fair use rights are also often able to afford a lawyer willing to make forays into expanding intellectual property rights in new directions at only a small to moderate risk. [1] https://www.eff.org/deeplinks/2012/04/limbaugh-copies-michael-savages-bogus-copyright-theory https://www.eff.org/deeplinks/2012/04/limbaugh-copies-michae...

magicalist 14y ago

> No that is NOT my point, in fact I specifically said: "it would still be improper to try to enforce a CR when the 'alleged' infringement is obviously permissible under the Fair Use Doctrine". Although I think you knew that and did not intent to include the word "not" in the above statement, in which case, yes, it is improper to send out a DMCA Notice when you know the alleged CR is being used permissibly under Fair Use. Sorry, my response was confusing. By "to actually get to will_brown's point" I meant "to address" your point, because then I did mean to disagree with you :) I agree with you that fair use is almost certainly considered by attorneys before advising about filing suit, but unfortunately in practice, the repercussions for filing suit while on the wrong side of even obvious fair use are unlikely enough that it often is done. There are of course always going to be legitimate disagreements over what constitutes "obviously permissible" under fair use, and cases that seem obvious to some will still end up in court. But there are many, many flagrant abuses of the system, under the same kind of incentives that give us SLAPPs, with the same issues of not enough legal tools to fight them without also having plenty of money to back you up. For some examples, check out this EFF article[1] after Rush Limbaugh used the DMCA last year to take down clips from his show used to criticize what he said after the whole Sandra Fluke testimony thing. It also includes a host of other examples of people using takedown notices in this way, from Uri Geller to network news programs. It highlights the example of Michael Savage v the Council on American–Islamic Relations, where Savage did take them all they way to court after the notice/counternotice dance, the judge did dismiss the claims under fair use, but did not award attorneys fees. If CAIR had instead been an individual or a poor advocacy group, it's likely that Michael Savage would still have taken them to court, but there would be huge disincentives for that other party to allow the situation to escalate to that level. Better to not file a counternotice and just accept defeat than go into massive debt (hence the comparison to SLAPPs). In any case, I do agree with you that that's how the law is structured, and there are likely many ethical lawyers out there going through exactly that decision process, and we never hear about it. My point is merely that, like the "knowingly materially misrepresent" clause in the DMCA, the disincentives to being a bad actor are often toothless (and just the threat of a fight are enough to prevent people from even getting to the stage where they do have any legal remedies), so there are plenty of bad actors. And unfortunately, the people most likely to want to trample fair use rights are also often able to afford a lawyer willing to make forays into expanding intellectual property rights in new directions at only a small to moderate risk. [1] https://www.eff.org/deeplinks/2012/04/limbaugh-copies-michael-savages-bogus-copyright-theory https://www.eff.org/deeplinks/2012/04/limbaugh-copies-michae...