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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?
(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.