EFF To Ask Judge To Rule That Universal Abused the DMCA 139
xSander writes "The Electronic Frontier Foundation (EFF) will urge a federal judge in San Jose, CA to rule that Universal abused the DMCA to take down a video of a toddler dancing to a Prince song. The case in question, whose oral argument will be Tuesday, October 16, is Stephanie Lenz vs. Universal, a case that began back in 2007. Lenz shared a video on YouTube of her son dancing to 'Let's Go Crazy' on a stereo in the background. After Universal took the video down, Lenz filed a suit with help of the EFF to hold Universal accountable for taking down her fair use. The court had already decided that content owners must consider fair use before sending copyright takedown notices."
Re:Unbelievable! (Score:5, Informative)
Re:I'm still not clear on how such takedowns... (Score:5, Informative)
In short, yes:
From the abstract of "Free Speech Unmoored in Copyright’s Safe Harbor: Chilling Effects of the DMCA on the First Amendment" by Wendy Seltzer
http://jolt.law.harvard.edu/articles/pdf/v24/24HarvJLTech171.pdf [harvard.edu]
If this takedown procedure took place through the courts, it would trigger First Amendment scrutiny as a prior restraint, silencing speech before an adjudication of lawfulness. Because DMCA takedowns are privately administered through ISPs, however, they have not received such constitutional scrutiny, despite their high risk of error.
The actual article argues that although the takedown notices are carried out by private entities, they are being done "in the shadow of the law". However, until a court accepts this, prior restraint does not apply.
Read the Law (Score:4, Informative)
None of the things you mentioned are criteria for determining whether something is fair use. They are examples given in the law, and were never intended to be an exhaustive enumeration of instances of fair use:
... the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
The real criteria for fair use follows that introductory paragraph:
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a 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.
This video easily passes those criteria.
Re:I'm still not clear on how such takedowns... (Score:5, Informative)
Glad to see somebody trying to set the record straight. Corporations are not required to take any steps that, in their management's judgement, might be contrary to law. There are several areas of law where the exact opposite is the case. (Just try to claim in a U.S. court, that your corporation was compelled to bribe local officials in a non U.S. locale because "it's the way that culture works" and you would have been remiss to not use bribery to maximise shareholder value. You'll find out that there are international treaties supporting the U.S. penalizing your corp for something it did off of US soil.). In addition, it's usually possible for a board to 'beat the rap' by simply claiming they were avoiding negative publicity for such actions, i..e. by claiming they feared triggering a boycott movement.
The problem starts when somebody finds out that shareholders have sued because a board of directors 'failed to maximise value'. The correct way to look at that is that somebody has sued NASA because a kid on a playground broke their window with a baseball. Just because somebody files a lawsuit doesn't mean it is at all reasonable nor that they have any chance of winning. Somebody might sue you for breathing their air, now do you go through life using that to justify your every action? There have been a few reasonable claims that a board was failing in its duties, but many more unreasonable ones, and the chance anyone will win a suit against a board of directors over shareholder value is pretty slim overall.
Here's the sort of situation where a shareholder value claim can win: The board appears to be taking steps that are generally devaluing the company, or at least making it perform at far under anticipated projections. Judicial review shows these steps may have helped another company profit, and part of the board consists of members who have some sort of 'less than arms length' relation with that company.
Re:I'm still not clear on how such takedowns... (Score:5, Informative)
No, they are bound by case law to work towards fulfilling the goals that were laid out to their shareholders. Those goals are very, very rarely "make as much money as possible". They range from "maximize shareholder value" (which isn't the same thing as maximizing short term profit) to "uphold traditional christian values". No one ever said that selling stock of your company meant you had to run said company like a sociopath.