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Fair Use Must Be Considered In DMCA Notices
Posted by
timothy
on Thu Aug 21, 2008 01:01 PM
from the seems-only-fair dept.
from the seems-only-fair dept.
I Don't Believe in Imaginary Property writes "US District Judge Jeremy Fogel has ruled that an 'allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim,' which paves the way for a lawsuit against Universal Music over a ridiculous DMCA Takedown notice they filed. One can only hope that this ruling will some day be used against those who file misguided copyright complaints against computer printers. Those lawyers who rely upon buggy infringement detection programs to do their thinking for them — programs which are incapable of making subjective considerations like fair use — might want to think again before rubber stamping computer-generated DMCA Takedown notices."
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Technology: How To Frame a Printer For Copyright Infringement 325 comments
An anonymous reader writes "Have you ever wondered what it takes to get 'caught' for copyright infringement on the Internet? Surprisingly, actual infringement is not required. The New York Times reports that researchers from the computer science department at the University of Washington have just released a study that examines how enforcement agencies monitor P2P networks and what it takes to receive a complaint today. Without downloading or sharing a single file, their study attracted more than 400 copyright infringement complaints. Even more disturbing is their discovery that illegal P2P participation can be easily spoofed; the researchers managed to frame innocent desktop machines and even several university printers, all of which received bogus complaints."
Submission: Fair Use Must Be Considered in DMCA Notices by Anonymous Coward
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A Bit Tilted? (Score:5, Insightful)
"U.S. District Judge Jeremy Fogel has ruled that 'allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim,' which paves the way for a lawsuit against Universal Music over a ridiculous DMCA Takedown notice they filed. One can only hope that this ruling will some day be used against those who file misguided copyright complaints against computer printers. Those lawyers who rely upon buggy infringement detection programs to do their thinking for them -- programs which are incapable of making subjective considerations like fair use -- might want to think again before rubber stamping computer-generated DMCA Takedown notices."
Speaking of subjectivity, this summary is rife with it. Even though I agree 100% with it, I would prefer my news fed to me in the form of low grade homogeneous neutral gruel. I know it's more boring to read that way but it allows me, the reader, to form my own opinions. More importantly, it maintains that news source's credibility and will actually make the other side listen instead of instant dismissal. You're also needlessly jeopardizing those who are undecided on this issue. I think I'd rather read:
"U.S. District Judge Jeremy Fogel has ruled that 'allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim,' which now puts Universal Music at risk over a DMCA Takedown notice they filed. This ruling may also one day be used against those who attempt to file copyright complaints against computer printers & automated DMCA Takedown notices.
I know Slashdot is not a true news site and is more so a news aggregater of whatever CmdrTaco feels is relevant but does anyone else get a sinking suspicion that we might look a bit biased to outsiders?
There's no objectivity in this summary, it just assumes the reader needs to be told how to think (which is usually taken as an insult to intelligence). I just don't want Slashdot to turn into the "Fox News for Geeks, Stuffed into Your Gullet Our Way."
Re:A Bit Tilted? (Score:5, Insightful)
I think you're about 11 years too late for that.
Parent
Re:A Bit Tilted? (Score:5, Insightful)
Parent
Re: (Score:3, Interesting)
I doubt we all have enough critical thinking skills to grant us immunity form this kind of thing or the tactic would not be so popular. It is fun to think of Slashdot as a community of exclusively high end thinkers, but that is quite a ways from the truth.
Despite that I much prefer this kind of bias to the paid-for-but-not-admitted-to stories. At least we can assume overly dramatic write ups get through because the editors don't really want to take the time to edit them. With the paid stories the editors ar
Re:A Bit Tilted? (Score:5, Funny)
Interesting side note, 'high' is a synonym for 'stoned,' while 'end' is a synonym for 'asshole.' And 'thinker' just means 'someone who doesn't do shit, but talks a lot.' I definitely think Slashdot is a community of high end thinkers.
Parent
Re:A Bit Tilted? (Score:5, Insightful)
1) Slashdot will inevitably receive summaries written by people who engage strongly with the subject matter. Those people are unlikely to write neutrally.
2) It is immediately obvious that in the summary we are receiving the submitter's editorialised version of the events. There is no facade of neutrality or objectivity in an IP law post that starts "I Don't Believe In Imaginary Property writes:"
3) There is an expectation of factual accuracy in a Slashdot summary. Outright lying with regards to the content of the article is not acceptable in any case. Fortunately that is not true here.
4) A non-editorialised, neutral version of events is usually provided by the story itself, a mere mouse click away, assuming it is not a blog or some other editorial article. Given that said story contains the news we're actually after, it seems to me inevitable that even the most credulous reader would be dissolusioned of any false assumptions they made on the basis of an editorialised summary.
To get down to brass tacks: I never read a Slashdot summary an expect it to be neutral and free of editorialisation, any more than I would expect a blog post to be. Everything from the way stories are gathered at the back end to the way they're written on the front page makes it obvious that this is not the case. Even if you argue that all news sources (even Slashdot summaries) should come with an expectation of neutrality and objectivity it seems obvious to me that it's in an entirely different kingdom of bias than the likes of Fox News.
Parent
Re:A Bit Tilted? (Score:4, Insightful)
I don't agree. Slashdot has never pretended to be objective. But there's a difference between the slanted newsgathering the editors have always done and the outright rants that they've been doing lately.
One difference is the blogosphere. Slashdot stories used to be mostly summaries of (and links to) stories on serious news site. Now there are thousands of angry, self-righteous blogs out there, and they all have have "Submit to Slashdot" buttons. The editors often pass these submissions on with little or no editing (in particular, they rarely double check the blogger's assertions) and end up posting a lot of very subjective opinions as if they're established fact.
Plus, many editors seem to have been infected by the Howard Beale [youtube.com] attitude of the blogosphere, and feel compelled to add their own ill-informed little rants.
Parent
Re:A Bit Tilted? (Score:4, Funny)
Ever eat a nice steak? mmm tasty. Ever try eating the turds the next morning? Not quite as good, is it?
I'm 100% willing to take your word for it.
Parent
Re: (Score:3)
but seriously, just because you disagree with someone doesn't make them a troll. slashdot "troll" and "flamebait" are just mod-point sensoring. I'll call it a /. takedown.
Re: (Score:3, Insightful)
You must be new here! :P
Seriously this is slashdot. If you want objectivity go to news.google.com or the like.
Re: (Score:3, Funny)
You must be new here! :P
Ewe muss bee knew hear! ;)
Re: (Score:3, Insightful)
If you think the "official news" is objective, then you've never been on site at a news happening and then later seen it reported ... TV, newspaper, they slant equally, though they prefer different techniques.
Slashdot is, at least, blatant about presenting slanted news. I've been on site where NBC (this was prior to MSNBC) was recording for rebroadcast. When I later saw the report it took a significant amount of time (about half the footage) before I finally realized what they were "reporting" on. It was
A Bit Tilted AND nonsensical (Score:5, Funny)
Hmm... I thought that the takedown notices sent to printers was ridiculous because it showed that the method the RIAA used to determine who was pirating music was b0rken.
Apparently, the printers really were downloading music, but they had a fair use! I totally misread that story before. I, for one, will not stand for fair use rights being taken away from our electronic friends!
Parent
Re: (Score:3, Interesting)
What do you expect on a story about DMCA takedown notices submitted by a guy named "I Don't Believe in Imaginary Property"?
Re: (Score:3, Insightful)
Let me highlight something in the summary I believe you missed.
Re: (Score:3, Funny)
A bit off-topic, but just for an academic exercise...
Re: (Score:3, Insightful)
You weren't clued in to this by the "News for Nerds... Stuff That Matters" tagline? Of course a site purporting to know what "matters" to you is biased. For the most part, no one here pretends otherwise, which is neutral enough for me.
but... (Score:3, Funny)
But you've just shown that they don't even think the first time around...
I can't wait to see where the countersuit goes from here.
Too soon to celebrate (Score:3, Informative)
Re: (Score:3, Interesting)
If "subjective bad faith" as the cause of Universal's behavior is eliminated, they're left with only "stupidity" or "ignorance of the law" as their excuses. Since neither of those is likely to make their lawyers look good, I'm guessing they'll go with with some variation on the general theme of "ignorance".
Sample: "Sadly, your honor, in spite of the many requirements we placed in their contract, we were not informed by a third-party subcontractor of a computer or software error for which they were entirely
Maybe it isn't so much reliance... (Score:4, Interesting)
Re:Maybe it isn't so much reliance... (Score:5, Insightful)
They don't just loathe the concept, MPAA honcho Jack Valenti said "there's no such thing as fair use". It's like the music industry in the 1980s, when LPs would say on their covers that any copying was a federal felony, despite the fact that the Audio Home Recording Act of 1978 specifically said that recording those LPs to tape was LEGAL.
These bozos don't give a rat's ass about the law. As far as they're concerned, what they say is the law is the law. Considering their army of lawyers, lobbyists, and campaign bribes; er, 'scuse me, "campaign contributions", they may well be right.
Parent
Quality line from Universal (Score:5, Insightful)
Well isn't that a crying shame, they can't shotgun automated DMCA notices without the threat of consequence anymore. Boohoo.
Perjury (Score:5, Interesting)
To date, has anyone anywhere gone on trial for perjuring themselves in a false DMCA notice? If not, why not?
Re:Perjury (Score:4, Insightful)
Parent
a lot of us are happy (Score:5, Insightful)
that someone in the justice system has noticed that the rabid dog has no right to go around just randomly biting people
but a lot of us are still waiting for someone in the justice system to notice that we need to put the rabid dog out of its misery
there is no more life in copyright for products that can be consumed electronically (music, text, movies, etc.) because there is no way to enforce the legal concept of copyright in an environment where there is zero distribution cost for infinite distribution abilities
the internet killed copyright. the internet lets everyone be a publisher with greater reach than all the most powerful media companies combined. i can share a file with someone in buenos aires, wellington, seoul, and vancouver. my distribution costs are zero. my reach is infinite. there is no such thing as copyright in this environment
there are no checkpoints where a rogue printing press, pirate cd presser, or renegade vcr duplicator can be located by the authorities and shut down. who are you going to shutdown on the internet? traffic can be obscured in such a way that you can't monitor it, and these methods can be encapsulated in code so the clueless end user need not know any special technical abilities to trrde files discreetly, and find anything they want
game over dude
a lot of time now must be spent waiting for everyone else to wake up to this realization
the internet killed copyright
you can't copyright anything in meatspace (Score:5, Insightful)
in other words, you can control access to a venue in the real world, such as a concert hall. so you can't control your mp3 of your song anymore. but you will still make a rich living, have tons of fame and eager female fans. your mp3 becomes advertising, and your source of revenue becomes your journeyman concerts
"Why put the time in when you can't make money off it, so instead I would be forced to do something else to support my family."
oh, you mean like every struggling musician who ever existed? what a crock. what you mean to say is "i recorded a song once, now society owes it to me, my children, and my greatgrandchildre that they never have to work a day in their lives". you see copyright as a path to entitlement. sorry, fuck you, consider this notice that your sense of entitlement is hereby revoked. yes, you DO have to work like the rest of us, sorry asshole
furthermore, this observation of still making $ in a world without copyright can be extrapolated to any other media, even book writers. jk rowling would still be very rich in a world without copyright because she would sell all sorts of ancillary products and sell her script to hollywood. how can you sell a script in a world without copyright? my observation on copyright being dead only applies to media that is consumed electronically, because the internet represents zero distribution costs and infinite reach. anything in the realworld, such as a hollywood production, represents a choke point that doesn't exist on the internet. since cost is involved, control can be exerted. another studio can be sued for making a harry potter movie without the studio who owns the rights' permission. you simply can't do that on the internet. you can do that in the real world, and you will always be able to do that. so notice the qualitification: the copyright is dead in regard to anything that can consumed on the internet, and only in that regard
hollywood itself would still make lots of money because people still like going to theatres. watching the dark knight on a 17 inch monitor in your basement by yourself does not compete. television was supposed to kill hollywood in the 1950s. now the internet is supposed to kill hollywood. the entire time, theatre attendance and revenues keep going up. conclusion: people like going to the theatre, and always will, regardless of all the constant doomsayers. a theater is a venue where you charge attendance, because yu can CONTROL attendance, so we will have $100 million production budgets for decades to come
btw, hollywood will still make money on dvds. people will still buy them to guarantee organization, ease of use, quality. likewise, bertelsmann will still sell cds. its just that they won't stop, or be able to stop, the free trade of dvd and cd content on the web (where most of it will be distributed and consumed for free, granted)
meanwhile, penguin will still sell plenty of books, because nothing competes with woodpulp in terms of cost and convenience and ease of use (sorry kindle)
Parent
Re: (Score:3, Insightful)
Your entire argument is based on supposition - not to mention obnoxious levels of selfishness in attacking artists for daring to want to make any money at all from their works directly - and some of your points are completely illogical on its face. Hollywood wouldn't make money off of DVDs because most stores would instead sell pirated DVDs, BMG wouldn't make money from CDs because most CDs would be pirated, Hollywood might not even make much money from movies because bootlegging from reels (especially as m
my argument is based on what is (Score:3, Interesting)
yes, copyright is unenforceable on the internet. do you agree or disagree?
if you disagree, you are in denial, if you agree, forget everything i said, throw it all out. consider me a loathesome poisonous crackpot. i don' care. i'm merely describing reality, a world without copyright. which, obviously, is what the internet is turning it into. see? do you adapt to that? or die off in denial?
and you've kind of revealed your sluggishness of mind on that subject already:
"Hollywood wouldn't make money off of DVDs
Re: (Score:3, Insightful)
And this is where you completely lose credibility. Let's analyze your reasoning here. You're saying J.K. Rowling is going to give away her books, which take a substantial amount of time to write. How is she going to pay
Re:you can't copyright anything in meatspace (Score:4, Insightful)
Actually, I'd say that involving "end of life" calculations would do nothing but *encourage* murder. Better to kill you now to get the clock ticking than to wait for your natural death.
Better to just say "X years, regardless whether the owner is still alive or dead." Doesn't matter if you kill the author or not, copy rights will survive to the estate if the author dies, and you still won't have unfettered access to the material.
Of course, X should be no more than 25. I mean, really. Anything more is silly. Even 25 is excessive.
Parent
RIAA Doesn't Support Artists (Score:3, Insightful)
I'm glad that copyright is working for you, but in the case of the music industry it is out of control, and is actually harmful to individual artists. If we returned to the original definition of copyright, where it belonged to the artist only, I'd support it.
But in the current situation, artists often can't play or distribute songs they wrote, receive little to nothing of copyright-related revenues, and often lose control of future work before they write it.
Internet radio i
Important Addendum (Score:3, Interesting)
I wish I hadn't clicked "Submit" before:
What I also want to point out is that, if these people who are creating "intellectual property" can no longer afford to do so because they can't make money on their works, there would indeed be a sharp, incredible decline in the number of "works of art". Pop-culture as we know it would utterly cease to exist.
To some this is a good thing. To others, absolutely awful. I just wanted to make sure I pointed this out so I didn't come off *completely* one sided. I don't
Re: (Score:3, Interesting)
Cry me a river. I wish I could make money from reading Dilbert all day, but since society has decided that it doesn't consider that a profitable career, guess I'll have to find more productive employment.
If one doesn't like someone else's business model, they have every right to not do business with them. However, not doing business with them does not mean "ignoring their business model because it doesn't suit me, but taking the end product anyway". Those who support reasonable copyright aren't demanding that you pay money for their work, they're demanding that you either agree to their stipulations, or don't take their work. I fail to see what's particularly unfair about that.
Re:a lot of us are happy (Score:4, Insightful)
Those who support reasonable copyright aren't demanding that you pay money for their work, they're demanding that you either agree to their stipulations, or don't take their work. I fail to see what's particularly unfair about that.
The failure is that it isn't a natural, inherent right. Copyright is something whipped up to encourage artists to add to the public domain. Since Disney et al have stolen (yes, stolen, as in "deprived others of use") their early works from the public domain by paying to have copyright extended perpetually, I can't work up a lot of sympathy for people who take their new stuff without paying.
Basically, as a society, we're telling them to either agree to our stipulations or don't take our protections.
Parent
the ancillary business model (Score:3, Insightful)
television and radio has been beaming free media content on the airwaves for decades, and they are very profitable. why? how?
because charging someone to buy your book/ software/ cd/ dvd is not, and never has been, the only way money is made in media. the advertising that radio and tv sell is but one of dozens of other ways you can make $ with free software
free software represets an upside to: zero resistance to widespread implementation. if you sold your package for $100, you might have 100 customers. if yo
sorry, i need to qualify (Score:3, Interesting)
from my othwer comment:
http://slashdot.org/comments.pl?sid=653201&cid=24693271 [slashdot.org]
Re: (Score:3, Interesting)
If Sci-Fi want the show made, then they would have to pay the people who make it, the only thing that changes is that no-one gets to keep the copyright under their control. Someone else could re-broadcast it, but they'd always be an episode behind; being the official channel for a show is still going to draw in the bulk of the viewership. Besides, the rebroadcasters are providing a useful service for people who missed the show the first time around, if Sci-Fi don't want the ad money from doing a re-run the
Re: (Score:3, Insightful)
Wrong. Copyleft is a cute term somebody made up to describe a certain type of copyright license. It's still entirely dependent upon copyright law. Like any non-exclusive copyright license, the GPL conveys less than the entire interest in the copyright, meaning that the owner of the copyright can impose restrictions on use of the copyrighted work. It has nothing to do with any inherent right of attribution. In fact, th
fiscal conservative (Score:5, Insightful)
It is certainly the government;s responsibility to help maintain the laws, but what has happened to the normal fiscal responsibility we apply to these things. We don't stop everyone who is speeding. We don't staff police departments so that every person who steals a CD from a car is prosecuted. Yet our court system is being overwhelmed by companies who stand to lose a $20 cd sale due to copyright infringement.
This situation is getting worse. The FBI wants to open a case with no probable cause. Each case represents a finite amount of expenditure of taxpayer money. In times past, we had some assurance that money spent was used to investigate a legitimate crime with legitimate suspects. Now we could have massive amount of waste due to an agent not liking his new neighbor.
Summary of Universal's position (Score:5, Informative)
A brief recap for those who haven't been following the case:
Around Feb. 2007, Stephanie Lenz posted a Youtube video of her toddler laughing and dancing to Prince's "Let's Go Crazy". The song is heard somewhat indistinctly in the background of the low resolution, low fidelity 29 second video. Four months later, Universal sent a takedown notice to Youtube to remove the video. Mrs. Lenz with the Electronic Frontier Foundation filed a counter-notice and sued under a provision of the DMCA.
Universal wanted the case dismissed with their brief arguing [eff.org]:
In court, Universal also tried to argue that their takedown notice wasn't a DMCA takedown notice because the notice had a disclaimer saying it wasn't. The notice however followed the same procedure as a DMCA takedown and was sent to the DMCA takedown email address at Youtube. This point is important as the DMCA has a provision that allows for lawsuits if copyright holder abuses the DMCA. The Judge didn't address this point in particular but apparently disagreed given his ruling.
Universal however seemingly admitted to ABC News that it doesn't really check material for Fair Use before sending out takedown notices and doesn't care:
This is another important point because copyright law requires copyright holders should be diligent when pursuing legal actions. From what we know of the RIAA lawsuits, Universal doesn't seem to think this applies to them.
Re:Summary of Universal's position (Score:4, Insightful)
Fair Use is not a defense for copyright infringement
HA! Jolly good show, old chaps. I sure hope the judge got a laugh out of their ludicrous claim, because I know I did. The other claims are just ridiculous... this one blatantly contradicts the law.
Parent
Printers (Score:3, Funny)
I wonder for whom I should root when a lawyer ends up suing the RIAA on behalf of a slandered printer...
What is fair use? (Score:4, Insightful)
I run a web site for local bands where I give away their MP3 and a few bands have ended up with international gigs because of it. Some of their older songs may have names that new RIAA approved songs happen to have which results in nasty letters from lawyers. I know of at least US$20,000 worth of losses due cancelled gigs due to to RIAA paranoia so far. The RIAA isn't about music, they are after moving small plastic things.
If you don't think the RIAA is out of hand, how much should the senators who sung God Bless America on the steps of the Capital pay the Boy Scouts? The law is the law isn't it?
Can't copyright titles. (Score:3, Informative)
You can't copyright titles: Song names, book names, movie names, etc.
Otherwise Alan E. Nourse would have a dandy suit against Warner Brothers over _Bladerunner_.
Dear RIAA, MPAA, etc... (Score:4, Interesting)
I am fully prepared to begin holding up my end of the bargain on the copyright equation.
As soon as you are willing to hold up yours.
This includes, but is not limited to:
Copyright is a two-way street, and failure to maintain your responsibilities means a complete forfeiture of any right to try and enforce compliance with my responsibilities. Continued attempts to pass laws in order to shirk your responsibilities will be responded to with unchecked, tube-clogging mass downloading.
AudioGalaxy claimed PD material was copyrighted... (Score:3, Interesting)
Oh, I hope this is a harbinger for the future. I used to use AudioGalaxy regularly, mostly rare 78s and cylinder recordings from 1900 to 1940 which a number of generous collectors were sharing.
One day, virtually all of the shared material was unavailable. If I recall correctly, all of the items were still visible, but now contained individual notices that they were no longer available due to copyright restrictions.
I made a few weak attempts to contact AudioGalaxy and ask them to restore material that was obviously not under copyright, to ask them what checking they had done, and how they could possibly even think that a 1907 recording of Vesta Victoria singing "There Was I Waiting At The Church" was copyrighted.
Of course, they wouldn't even give me the courtesy of a reply.
Simple fix to overzelaous litigation (Score:5, Interesting)
If an entity sues for copyright infringement on some work they claim copyright to and loses with prejudice, they are stripped of any copyright to the work they sued for.
Simple. In litigation, there needs to a concept of jeopardy. Both sides can lose. Not just the case, but something substantial. The defendant here is being sued for monetary compensation. In criminal cases the prosecution jeopardizes their ability to prosecute in the future using better evidence. We clearly need the same principle to apply to copyright litigation.
If you don't want to take away the copyright, at least make the plaintiff pay the amount they were asking for in damages to the defendant. Jeopardy would restore balance to the system.
m
Re: (Score:3, Interesting)
Re: (Score:3, Informative)
This is less sinister than it sounds.
It is a common practice that when a book store buys way too many copies of a book from a publisher, that they can "return" the overstock to the publisher by ripping the covers of the book off and sending just those back, and tossing the rest of the book into the trash.
Some unscrupulous book stores will turn around and sell the coverless books, thus screwing the publisher.
Often times, the wording is less legalistic and states something to the effect of, "if you bought thi