In what could be an upset to the media companies use of automated DMCA takedowns the Ninth Circuit Court of Appeals ruled on Monday that copyright holders must consider fair use before demanding companies such as YouTube remove potentially infringing content and can be liable for damages if they do not.
The three-judge panel on the court determined Stephanie Lenz, who posted a YouTube video of her child dancing to a Prince song in 2007, could proceed with her lawsuit seeking damages from Universal Music Corp., which pressed YouTube to remove the video under the Digital Millennium Copyright Act (DMCA). "We hold that the statute requires copyright holders to consider fair use before sending a takedown notification, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law," according to the majority opinion.
It's not completely clear cut and dried however, as the court found that "the implementation of computer algorithms appears to be a valid and good faith middle ground for processing a plethora of content while still meeting the DMCA's requirements to somehow consider fair use." It speculated about a model in which a company sets up a computer program to send automatic takedown notices for content it identifies as nearly identical to copyrighted work, while a backup process uses humans to manually review other content that the computer program identified with less certainty.
While an appeal is probably inevitable, could this possibly be some light at the end of the tunnel for some of the overreaching and abusive use of the DMCA to take down non-infringing and fair use content?
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Cary Sherman, the chairman and CEO of the Recording Industry Association of America, has some choice words about the current state of US copyright law. He says that under the Digital Millennium Copyright Act, rightsholders must play a game of whack-a-mole with Internet companies to get them to remove infringing content.
But that "never-ending game" has allowed piracy to run amok and has cheapened the legal demand for music. Sure, many Internet companies remove links under the DMCA's "notice-and-takedown" regime. But the DMCA grants these companies, such as Google, a so-called "safe harbor"—meaning companies only have to remove infringing content upon notice from rightsholders.
Sherman added:
Compounding the harm is that some major online music distributors are taking advantage of this flawed system. Record companies are presented with a Hobson’s choice: Accept below-market deals or play that game of whack-a-mole. The notice and takedown system—intended as a reasonable enforcement mechanism—has instead been subverted into a discount licensing system where copyright owners and artists are paid far less than their creativity is worth.
If the RIAA is tired of playing whack-a-mole, perhaps it's time for them to greet their new mole overlords.
See our previous stories: Why the Record for DMCA Takedown Notices to Google was Smashed Yet Again and Fair-Use Proponents Score Early Win in DMCA Copyright Case.
(Score: 0) by Anonymous Coward on Wednesday September 16 2015, @04:31AM
While this might make the situation a bit better, getting rid of DMCA notices would fix this particular issue much more effectively. Forgoing due process (you must remove this data or you lose safe harbor) to make it easier to enforce copyright is a travesty in a country that's supposed to be all about freedom and justice. If they want censorship so badly, we have no obligation to make it easy for them to streamline the process.
(Score: 5, Insightful) by penguinoid on Wednesday September 16 2015, @04:44AM
After duly considering fair use provisions, we find that this bird's chirping is in violation of our copyrights on the piece titled, "Crappy Song". Furthermore, we did not give this bird permission to publicly perform. We demand that you take down the video, and furthermore tell us the name and address of this pirate bird, whom we will sue for $10,000 per song.
RIP Slashdot. Killed by greedy bastards.
(Score: 5, Insightful) by frojack on Wednesday September 16 2015, @04:54AM
the court found that "the implementation of computer algorithms appears to be a valid and good faith middle ground for processing a plethora of content while still meeting the DMCA's requirements to somehow consider fair use."
The court giveth and and the court taketh away.
They require fair use, but say it can be judged by a computer which is exactly what the media companies appear to be doing already. I actually don't see this as any different than what is happening already other than some speculation about a second stage human evaluation. That seems to give official blessings the whole sordid shenanigans we hear about every other day.
No, you are mistaken. I've always had this sig.
(Score: 3, Interesting) by zocalo on Wednesday September 16 2015, @07:11AM
There's also a second unknown in this, which is just how many erroneous DMCA takedowns actually get issued. Given the sheer numbers involved those that we hear about being in error is awfully low, but that's not going to take into account those that get no media coverage or the potentially much larger volume of cases where the poster of the video that was taken down just accepts it and moves on. If the cases we hear about are really just the tip of an iceberg, and enough of those cases start getting taken to court, then that could easily start to bog the whole process down. Unless the courts get involved then the whole DMCA process is basically overhead for the media companies and for the service providers; only those that are getting paid to scan for potential abuse and issue the takedowns will be making any money off the process, and if they start getting hit with court costs when people start protesting use of the DMCA against their fair use content then there has to be a point at which the costs and inconvenience will exceed the benefits.
UNIX? They're not even circumcised! Savages!
(Score: 2) by darnkitten on Wednesday September 16 2015, @11:13PM
It'll be a slap on the wrist (legal fees plus damages, from what I understand). But even if it's the greatest damages possible, it'll be a slap on the wrist, because our punishments don't scale. What would be crippling damages for an individual small business can be shrugged off with impunity by a large corporation or group. The RIAA etc. can afford to absorb millions in damages if it means they can continue their tactics; whereas we have to commit to filing suit against them, racking up legal fees and risking the loss of everything (the aforementioned crippling damages) if we lose, in order to oppose those tactics.
Without the ability to scale punishments to levels that would be meaningful to these organizations, the deck is stacked against us, and only rarly will we find anyone willing to stand up against them.
(Score: 2, Interesting) by aristarchus on Wednesday September 16 2015, @06:38AM
Now all we have to do is to get judicial confirmation that _ALL_ educational use of copyrighted material is FAIR USE! And by "ALL" , I mean ALL. So any and all photocopying of text books, including full copies, will be covered by fair use. Distributing the answers to the tests condoddled by Republican corporations that think they will make big bucks off of "No Child Gets Educated", fair use. Two hundred dollars for a textbook in a field where nothing has changed in one hundred years, except the page numbers in said textbook? If someone wants to scan that an upload it to a file sharing site: FAIR F**KING USE. All educational use, where the person making the copy does not profit by making the copies, is fair use. This goes back to the rather poorly decided Kinko's case of the '90's. Copyright clearinghouse? NO! Educational use is FAIR USE.
OK, I am off to scan in an entire textbook on Sanskrit Grammer. Copyright should have expired years ago. But then Sony Bono intervened, before he shoved his tibia through his thorax. The evil that men do lives beyond them. Educational use is fair use, all of it, to whatever extent. Anyone who tries to make money off of students is a sick bastard, much like the slum lords in college towns, or the Starbucks in the same neighborhoods.
(Score: 0) by Anonymous Coward on Wednesday September 16 2015, @08:18AM
I think that's too broad. A teacher copying a book and then selling those copies to his students for a profit (as opposed to simply recovering his cost) should still be liable for copyright infringement, even though those copies are for educational use. Also, plagiarism of educational material (also a form of copyright violation) should still be disallowed.
(Score: 2, Insightful) by aristarchus on Wednesday September 16 2015, @08:33AM
Agreed. But "at-cost" copying is what has been deemed illegal. Plagiarism is an entirely different issue that has nothing to do with copyright. And you should know that, unless you are a dirt-bag publisher just pretending to be an AC in order to spread fear and misunderstanding? Of course you are not, right? And you know, even if a teacher is making a profit, I would be willing to let it pass, because god forbid that a teacher actual make some money, instead of the parasitical publishing corporations that have no souls and suck the life blood out of innocent students, and so on.
(Score: 4, Interesting) by fido_dogstoyevsky on Wednesday September 16 2015, @11:08AM
Educational use is fair use, all of it, to whatever extent.
I think that's too broad. A teacher copying a book and then selling those copies to his students for a profit (as opposed to simply recovering his cost) should still be liable for copyright infringement, even though those copies are for educational use.
I was about to agree, but then I remembered the extent to which those bastards (publishers, MAFIAA etc) have hijacked the idea of copyright for their own profit at the expense of all of society (ie me, you, your best friend, your worst enemy). So - no. In fact, FUCK NO!
Also, plagiarism of educational material (also a form of copyright violation) should still be disallowed.
Plagiarism very rarely involves copyright violation (after about year 10 in school) - the wording gets changed in the hope of not being caught doing it. And it is still frowned upon.
It's NOT a conspiracy... it's a plot.
(Score: 2) by Anal Pumpernickel on Wednesday September 16 2015, @06:39PM
A teacher copying a book and then selling those copies to his students for a profit (as opposed to simply recovering his cost) should still be liable for copyright infringement, even though those copies are for educational use.
No, since the very concept of copyright is flawed, since it seems to assume that lack of gain is harm, even though that is not true. Furthermore, enforcing copyright ultimately requires government censorship, which is completely intolerable and also unconstitutional. These companies will simply have to find a different business model or die off. That's what would happen in any sane society that actually cared one bit about freedom, instead of pretending to.
Also, plagiarism of educational material (also a form of copyright violation) should still be disallowed.
Since the purpose of school assignments is supposed to be education, school policies could take care of this. Fail the students who copy others' work and call it their own. We don't need copyright for this.
(Score: 4, Insightful) by Freeman on Wednesday September 16 2015, @04:39PM
The problem doesn't lie with the corporations who are making the textbooks. The problem lies with the Teacher who Selected a $200 textbook when a $50 or less textbook would have worked just as well. Certain disciplines could get away with Not using a textbook and / or using an Open Textbook. http://open.umn.edu/opentextbooks/ [umn.edu]
Joshua 1:9 "Be strong and of a good courage; be not afraid, neither be thou dismayed: for the Lord thy God is with thee"
(Score: 2) by Anal Pumpernickel on Wednesday September 16 2015, @06:44PM
The problem doesn't lie with the corporations who are making the textbooks.
The problem doesn't lie with any one person or group. But these corporations definitely have a hand in this, since they support the very draconian copyright laws that prevent educators from copying their materials and using them at affordable prices. They also try very hard and even resort to bribery to force the use of their overpriced books. Of course, teachers and schools who put up with this may also be a part of the problem.
(Score: 2) by Zz9zZ on Wednesday September 16 2015, @08:18PM
There is definitely some collusion and/or stupidity going on by teachers/admin, however teachers need to use educational materials. So, do you risk a lawsuit by copying the 10% of a book you need, or just tell students to buy the whole book? Do you spend hundreds of hours you don't have on writing your own material, proof-reading, supplying solution manuals?
The issue IS with the industry and its obvious motivation to get institutions to funnel as much money towards them as possible. Bribery, kickbacks, etc. and the universities don't have to care because the students are paying, and public education admin doesn't care because they have a publicly funded budget FOR the books. Bleh.
~Tilting at windmills~
(Score: 2) by hendrikboom on Wednesday September 16 2015, @05:40PM
Is that the textbook on grammar that was written a few thousand years ago? The one that used a form of transformational grammar? If so, you should have no trouble copying the original.
(Score: 2) by aristarchus on Saturday September 19 2015, @09:29AM
Yes, Panini's Sanskrit Grammar! You know it? One would think it is out of copyright, but unfortunately we allow parasites to copyright translations. Not sure if that is a bad thing, since I know that a good translation is often equivalent to a original work, but still, it is Panini, not Joe translator that deserves the authorial rights. My policy is basically that dead people cannot hold copyright. Once an author is dead, we should cut off all the parasitical descendents, and make them go out and get honest work like the Bush boys !