DMCA Takedown Notices Must Consider Fair Use

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Gravatar Iconby Mark Malek

The Digital Millennium Copyright Act (DMCA) was signed into law by President Clinton in 1998 and is an implementation of two World Intellectual Property Organization (WIPO) treaties.  To make it much simpler than it really is, the DMCA is directed to provide protection to copyright owners that find their copyrighted materials improperly posted on the Internet.  Again, that is a big oversimplification of the provisions of the DMCA, but it is enough of a background for this story.  The full text of the DMCA can be found here.

On its face, the statute provides an important enforcement mechanism for copyright owners who can’t necessarily afford to hire a legal team.  As it works now, copyright protection is created without any real effort on the part of the author, and as a result, it is incredibly easy for someone to have enforceable copyrights.  With the current state of technology, it is becoming equally easy to infringe on them, so lawmakers wanted to make them just as easy to enforce.  However, as with nearly every other well-intentioned legislative initiative, the DMCA’s power to do good has been twisted by the hands of the wicked into a weapon for evil.

As an example, many of you may be familiar with the copyright case that came up when a mother posted a video of her toddler dancing to a song by the artist currently known as Prince.  Of course, and probably because they are insulted by not having been yet nominated for the IP Bully of Month Award, Universal Music Group strong armed YouTube into removing the video claiming that the video infringed a copyright that it owned.  Take a look at the video and make up your own mind as to whether or not this is the most ridiculous thing you have ever heard of:

If someone didn’t tell me that Prince was playing in the background, I would have never noticed!

Bowing to Universal’s demands, YouTube removed the video, lest this public performance of Prince’s song cause damages to Universal – I hope you are picking up on the sarcasm!  Many of our readers may already know that the Electronic Frontier Foundation came to Mom’s defense and filed a suit against Universal asking a judge to protect her fair use and free speech rights in the video.  Fair use is a defense to a claim of copyright infringement and is a lawful use of copyrighted material.  Fair use can be determined using a four factor balancing test in which the court considers:

  1. The purpose and character of the use, including whether the use is of commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

The Federal Court found that "in order for a copyright owner to proceed under the DMCA with ‘a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,’ the owner must evaluate whether the material makes fair use of the copyright."  Clearly, Universal did not take any of the fair use factors into account before sending the DMCA takedown notice.  Instead, Universal tried to argue that requiring the copyright owner to evaluate whether the use is a "fair use" is too great a burden on the copyright owner.

Prince deep in thought

"Hmmmm…  What can I do to make sure that my fans always pay to hear my amazing music?"

As you can probably tell from the embedded video above, the Federal Court did not agree.  Although the Internet and sites like YouTube have made it much easier to infringe copyrights, a copyright owner should not be so hasty to send out DMCA takedown notices.  I am not saying that these need to be done away with all together.  Clearly, there are several copyright infringements that occur on the Internet, day in and day out.  I am simply encouraging Copyright Owners to analyze fair use defenses prior to sending out DMCA Takedown Notices.  As the court notes, considering fair use arguments that an alleged infringer may have is not complicated and will not jeopardize the owner’s ability to respond to infringers.  The Court went on to note that such an analysis is necessary to make sure that Copyright Owners do not abuse the DMCA Takedown Process.

If you receive a DMCA takedown notice that does not include a fair use analysis, do not automatically assume that the notice is improper.  The copyright owner may have very well conducted the analysis, but failed to include it in the notice.  One who receives such a notice is best served by doing an analysis of the material they have posted to try to determine whether there may actually be a fair use defense to the material they have posted.  When all else fails, call a copyright attorney for some advice!


[...] Even where all of this is true, U.S. copyright law was not implemented to choke off the flow of facts and news reporting.  In fact, § 107 of the Copyright Act specifically limits a copyright owner’s rights in these kinds of situations.  The IOC cannot use DMCA takedown notices to silence the speech it does not like.  In fact, sending those notices may end up costing the IOC, unless they can successfully make the case that they considered whether use of the clips could be fair use before making their demands.  Just ask the artist currently known as Prince. [...]

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