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The Courts Youtube Your Rights Online

YouTube 'Dancing Baby' Copyright Ruling Sets Pre-Trial Fair Use Guideline 127

Mr. Droopy Drawers writes with news that the famous "Dancing Baby" case will move forward to trial, after a pre-trial ruling Monday that's already unpopular with the copyright holders on one side of the case. The New York Times reports that a three-judge panel has "ruled that copyright holders must consider fair use before asking services like YouTube to remove videos that include material they control. ... [The guideline] "sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech," Corynne McSherry, the legal director for Electronic Frontier Foundation, said in a statement." Mr. Droopy Drawers adds, "Of course, the RIAA is none too happy about the ruling saying, that it puts undue burden on copyright holders. However, the judge countered, 'Even paying "lip service" to the consideration of fair use is not enough, and could expose a copyright holder to liability.'"

(Also covered in an AP story carried by the Minneapolis Star-Tribune.)
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YouTube 'Dancing Baby' Copyright Ruling Sets Pre-Trial Fair Use Guideline

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  • by Grog6 ( 85859 ) on Tuesday September 15, 2015 @10:20AM (#50524845)

    In an Election year, no less.

    How much money will the Congress Critters reap off this case?

    Many Tons, I'm sure.

    • by Luthair ( 847766 )

      I was thinking about the exact same phrase...

      Unfortunately it will never stand

    • Not so much. The same ruling allows companies to use a 'good faith belief' that something is infringing. And more importantly, it explicitly says they don't need to do ANY research to develop this 'belief'. So it's absolutely useless from a Fair Use standpoint.

      linky [techdirt.com]
      • Most fair use is blatantly obvious. If you have to "do research" to figure out whether something is fair use then it is close enough to the line that you shouldn't have put yourself in that position.

        • by gstoddart ( 321705 ) on Tuesday September 15, 2015 @11:52AM (#50525529) Homepage

          You're reading that backwards.

          The companies are the ones who need to be checking to see if the content is actually infringing, or is fair use. The problem is in their eyes there is no such thing.

          The court isn't saying parents taking a video of their dancing baby need to do some research to ensure they're not infringing.

          They're saying a 29 second video of a dancing baby with 20 seconds of bad quality audio of a Prince song it's infringing.

          Do you really think they're going to lose sales as people just decide to listen to the bad quality audio to avoid having to buy it? The problem is that the copyright clowns have more or less decided that there is no fair use, and that unless you licensed it in advance you can't use it.

          And, I'm sorry, but that's idiotic on behalf of the copyright clowns.

          • by Dunbal ( 464142 ) *

            The companies are the ones who need to be checking to see if the content is actually infringing, or is fair use. The problem is in their eyes there is no such thing.

            The problem is there are zero consequences for claiming something is infringing when it isn't, but everything to gain by doing it if and when it gets taken down. Oh yeah lawyers who spam cease and desist notices are risking their career and being "disbarred" by doing this. Please provide evidence of a single lawyer who has lost his right to practice because of it? But if mass mailing takedown notices results in stuff getting taken down it 1) enlarges the pool of people you can potentially sue/exploit a sett

            • by CastrTroy ( 595695 ) on Tuesday September 15, 2015 @02:06PM (#50526513) Homepage

              I would question whether or not there really are zero consequences from making a claim that something is infringing when it really isn't. Sure, nobody get's disbarred, and nobody get's fined when they make a ridiculous claim of copyright for something that is obviously fair use. But every time they do it, and every time we hear a story about it, it makes us have just that much less sympathy for the companies that are making these claims.

              A lot of people will have no problem pirating Sony material after all the stunts they've pulled over the years in the name of protecting against piracy. Metallica has lost a lot of fans over the years because of the negative things they have said publicly about their fans. Many people feel that they are justified in breaking any and every copyright law because of how much it's been abused over the years. People will break laws that they feel are unjust. If you automatically charge people in Australia 30% more for copyrighted materials, for no reason at all, then they're going to find ways around that law.

              So, there may not be any direct effects of filing false claims, but there are a lot of secondary effects. They have probably lost way more customers due to the way they are acting than they would have lost had they just let people pirate without doing anything about it.

              • by Anonymous Coward

                Oh noes!
                Sniff :'( There goes my sympathy.

              • by Peeet ( 730301 ) on Tuesday September 15, 2015 @06:38PM (#50528319)
                I think you WAY overestimate the amount of awareness and understanding that the general public has about these issues and occurrences surrounding copyright abuse. This forum and ones like it are SO highly skewed to the tech aware crowd that it is very easy for us to forget that the opinions and conversations going on here are a single blip in the static of background noise outside the "cone of attention" of the general public and what they SHOULD be getting outraged / concerned about.

                Until WAY more stories like this start cropping up and the 24 hour news cycle can find a common gripe that the general public can focus their anger at, this will continue to be a silent assassin of small and accidental content creators and artists. If you REALLY want to make a difference, don't assume that piracy and ill will towards the corporations are universal or even the result of all the underhanded IP and copyright bullying that goes on. Instead, encourage and facilitate the ability of the average Joe and Jane to "produce" instead of spending all their time "consuming" TV and news from the conglomerates that would like nothing more for us to all just shut up and pay them to occupy our attention.
            • The moment you enter the Game of Lawyers, you have already lost. The only sensible way to deal with lawyers and their aberrations is to kill them, bury a stake through the heart of them and bury their heads separated from the body, just for good measure.
              • The moment you enter the Game of Lawyers, you have already lost. The only sensible way to deal with lawyers and their aberrations is to kill them, bury a stake through the heart of them and bury their heads separated from the body, just for good measure.

                If there's a choice between an imperfect legal system and total dog-eat-dog anarchy, I know which I'd choose.

                I guess I'm just not enough of an internet tough guy libertarian.

                • " I guess I'm just not enough of an internet tough guy libertarian."

                  No, you are just one more clueless idiot. The "system" is not imperfect, is plain broken. On purpose.
          • You read me backwards. Or forwards. When I said, "you shouldn't have put yourself in that position," I meant both the folks claiming fair use and the folks claiming infringement. If it's not obviously fair use and it's not obviously infringing, you're best bet is: stay away.

            This particular case looks rather obviously like fair use to me. No reasonable person would see it as anything worse than gray-zone. The copyright owner shouldn't be doing any research, he should be staying away.

          • You say "Copyright Clowns", and I immediately think of Dr. Rockso. [youtube.com]
          • "Undue burden". That means if even one hour is spent by one person in a corporation's basment deciding if a video is infringing, then that is an "undue burden" in their minds.

            • An hour spent by one person in a basement is going to cost something like $15-20 at an absolute minimum. That's a lot more expensive than somebody uploading something genuinely infringing to some site or other. The corporations do have a legitimate complaint here, which tends to get lost in their illegitimate and dishonest activity.

              • Undue burden should mean extremely expensive, not minor inconvenience. If they ever get to the point of issuing thousands of takedown notices an hour, you have a point. But something is examining these videos and deciding that a takedown notice is needed. Maybe it's a stupid program that only looks at titles in which case they need to expend more effort and have a human looking at them. If there already is a human looking at the video, then there is minimal cost for that person to exercise some common s

        • by pixelpusher220 ( 529617 ) on Tuesday September 15, 2015 @12:11PM (#50525665)
          The problem is the DMCA's shoot first ask questions later incentives. When a DMCA takedown request is received you HAVE to take down the content. There's no counter process that allows 'due process' to happen while the issue is sorted out. Youtube took down Justin Bieber's ENTIRE CHANNEL over a bogus request, linky [techdirt.com].

          If a prank can result in a world-wide multi-million dollar star's content being removed without someone questioning the validity of it. The system is fundamentally flawed.

          Or how about this. Jay Leno sees a video on Youtube and shows it on the Tonight Show. After the show airs, that video is pulled from Youtube. Why? Becuase, amazingly enough, it matched the 'signature' of what was played on the Tonight Show and NBC *automatically* had it pulled. linky [splitsider.com]
          • Re: (Score:2, Troll)

            by barakn ( 641218 )

            Are you kidding? Getting rid of Justin is a great result.

          • by Anonymous Coward

            Actually, you HAVE to take it down, to avoid LIABILITY. If you, as the site owner, believe the content not to be infringing, you could leave it up.

          • When a host receives a takedown request, they can avoid legal liability by taking down the content. They have no legal requirement to do so, but it's safer, and most big hosting sites don't make so much off random content that they can afford to take risks. At that point, if the host wants to avoid all liability, the host gives the person posting the content the chance to make a DMCA counter-claim, after which the host can put the content up again.

            The big issue is that most hosts don't charge to host p

            • How to fix it - at the VERY least make it a counter process BEFORE the content has to come down.

              Or

              as prince just found out, a baby dancing with your song in the background is GOOD advertising for you. Screaming like a little girl to a judge and having people look at you like a whining spoiled brat isn't.
              • That wouldn't do any good in the most common instances, since when the hosting is free the host doesn't have any obligations.

                It would help in some cases to allow the uploader to file a preemptive DMCA response, if the host were allowed to send that immediately to the complaining party. The idea of the DMCA takedown process is that the host takes down the content to avoid liability for copyright infringement, the uploader files a response that identifies the uploader and takes personal responsibility, an

                • The idea of the DMCA takedown process is that the host takes down the content to avoid liability for copyright infringement

                  Which is guilty until proven innocent. Someone merely claiming it's copyright infringement isn't anything more than a claim. Why not wait until it's actually RESOLVED to be a valid claim before taking it down.

                  This is the problem with the DMCA. Copyright specifically and the DMCA slightly less weren't intended to work with digital content and user generated content. It was meant for people actually using infringing work for economic gain. The muddying of the water is that previously people (or c

          • by Greyfox ( 87712 )
            I'm surprised no one's who's had a take-down that wasn't legit hasn't made a case that the takedown was in itself copyright infringement (Claiming a copyright you didn't own) and theft of service. I'd probably try to add libel to the list, too, seeing as how being dinged for copyright infringements can seriously impact your ability to make a living, if that living is from video service ad revenue.
            • claiming you'd do something is all well and good, except there's no law giving you any standing to sue beyond the basically toothless DMCA wrongful filing. You'll spend far far more on lawyers than you'd ever get back.
    • Dancing Baby was also the #1 downloaded Prince Song on Sharebeast.
  • by mwvdlee ( 775178 ) on Tuesday September 15, 2015 @10:22AM (#50524865) Homepage

    Isn't it already in the DMCA laws that complaints must have some merit with regards to fair use?

    • by mwvdlee ( 775178 ) on Tuesday September 15, 2015 @10:24AM (#50524873) Homepage

      Also, since when is it "undue burden" to check that a law is actually being broken before invoking that law?

      • Re:Seriously? (Score:5, Interesting)

        by Adriax ( 746043 ) on Tuesday September 15, 2015 @10:52AM (#50525065)

        The entire industry is centers around the idea of continued profit without effort. Any challenge to that is not just an undue burden, it borderlines blasphemy.

        • by Anonymous Coward

          My favorite line is this one:

          Universal had argued that considering whether material is fair use could slow its response to stamping out pirated versions of its work.

          It shows the terrible state of things in this world. 'IT' denotes "Universal Music Group". As if 'IT' has done any work. Granting corporations the same rights at actual people causes serious problems.

          Universal has done NO work, the work was done by the artist, and since 'IT' in this case is a multi-billion dollar corporation, surely the act o

      • Honestly, I thought the MPAA and RIAA had already amply demonstrated that they consider any amount of thinking to be an "undue burden" on their profits!

      • by Falos ( 2905315 )
        I almost bit my mouth bloody when I read that quip.

        Fuck you in every orifice with rusty garden tools, the lot of you. You're already willing to take the time to (wrongfully) file claims, aren't you? Oh wait, you're just sending out automated bots, automated takedowns, and probably automated C&Ds and settlement demands. Because fuck users, fuck commoners, I've got the hammer and will use it as much as I possibly can, moderation be damned.

        And will throw a bitchy lobbyist fit if a court suggests I so
    • Re:Seriously? (Score:5, Insightful)

      by gstoddart ( 321705 ) on Tuesday September 15, 2015 @10:41AM (#50524993) Homepage

      Yeah, well, it's also in the DMCA that companies are making a sworn statement but nobody has every been charged with perjury.

      Because when they bought the laws they gave themselves all sorts of exemptions so they could do anything without penalty and just say "oops", while using it as a weapon against everybody else.

      And then they got the federal government to be their enforcement arm.

      Absolutely NOTHING about the DMCA has EVER held corporations accountable. They can pretty much make any old bullshit up and say "ow, wow, a drunken intern did that, we though it was real" .. even if it's fairly obvious they're lying.

      They have never recognized fair use.

      • Re:Seriously? (Score:5, Interesting)

        by thoromyr ( 673646 ) on Tuesday September 15, 2015 @11:06AM (#50525205)

        There is a common misconception about DMCA complaints that they are sworn under penalty of perjury. Like most misconceptions there is an element of truth to it. In this case, it is a matter of the *scope* of what is being attested to under penalty of perjury. Specifically, that the person filing the complaint is in fact a duly authorized agent of the copyright holder for the work that is claimed to being infringed.

        This allows the absurdity of filing a complaint for infringement against ... oh, I don't know, one of the Star Wars movies ... against an image of Mickey Mouse. As long as the filer is, in fact, a duly authorized representative of Disney (current owner of the Star Wars franchise) then the claim is good. There is *no* standard for the claim of infringement.

        My "favorite" cases are where someone gets a complaint (or lawsuit) because they gave credit to a person or work as inspiration. Perhaps the most famous one (which was settled privately) was over the twenty six seconds of silence (or whatever length it was). But I've personally seen it as well. The lesson? Never give credit to anyone for anything unless you are paying them a previously agreed on amount. Which is horrible, IMO.

        • There is a common misconception about DMCA complaints that they are sworn under penalty of perjury. Like most misconceptions there is an element of truth to it. In this case, it is a matter of the *scope* of what is being attested to under penalty of perjury. Specifically, that the person filing the complaint is in fact a duly authorized agent of the copyright holder for the work that is claimed to being infringed.

          Yes. But in the many cases where even this wasn't true, i.e. they weren't a duly authorized agent, or any agent at all, nothing happened to the people doing the swearing under penalty of perjury. So it's a paper tiger at best.

          • Thing is, it's not just about it being untrue. Perjury is a crime. While that means the penalty can be pretty serious, it also means that it has to be done with intent and you have to prove that beyond reasonable doubt.

            A lot of takedown notices are technically not compliant because they don't have this statement, but ISPs tend not err on the side of caution with takedown notices.
            • My ISP takes this a bit more seriously (fortunately). They reject "shotgun" automated takedown/infringement notices by default, especially if there is no official contact information (name, title, email, phone number - all four must be present) with an actual person in the company filing the notice, included. Said information also can't just be some random law firm, it -must- be from the actual company in question or my ISP rejects it out of hand.

              I think one of the main reasons is because they are owned by

        • by Anonymous Coward

          My "favorite" cases are where someone gets a complaint (or lawsuit) because they gave credit to a person or work as inspiration. Perhaps the most famous one (which was settled privately) was over the twenty six seconds of silence (or whatever length it was). But I've personally seen it as well. The lesson? Never give credit to anyone for anything unless you are paying them a previously agreed on amount. Which is horrible, IMO.

          ]] The Stupidest Music Lawsuit Ever – Infringing on Cage’s 4’33

          ]] http://classicalconvert.com/2007/07/the-stupidest-music-lawsuit-ever-infringing-on-cages-433/

          "provoking the kind of discussion which Cage had originally intended when he first performed the piece: does it truly qualify as a work? If not, why not?"

      • Re:Seriously? (Score:4, Informative)

        by Anonymous Coward on Tuesday September 15, 2015 @11:10AM (#50525231)

        Yeah, well, it's also in the DMCA that companies are making a sworn statement but nobody has every been charged with perjury.

        Except that you've misunderstood what they are swearing to. The DMCA doesn't require a sworn statement that the material they are complaining about infringes their material. It only requires a sworn statement that the material they are complaining is being infringed upon belongs to them.

        In other words, if I write a song and you upload a different song and I want to file a DMCA takedown, I am well within my legal rights. I am required to swear that I actually hold the copyright to MY song...not that your song actually infringes on my song (that's for the court to determine). However, if I file a takedown complaining that your song infringes on a Beetles song, then I am guilty of purjery, since I swore that I own the copyright to that Beetles song (which I don't)

        • Yes but the main point from the plaintiff Lenz is that Fair Use is not by definition an infringement. Universal argues that Fair Use is an affirmative defense of infringement. If the courts rule that Fair Use is not an infringement (which they previously have), then it is considered abuse of the DMCA because Universal declared that they found "infringing" material.
    • Re:Seriously? (Score:4, Informative)

      by ConfusedVorlon ( 657247 ) on Tuesday September 15, 2015 @11:25AM (#50525347) Homepage

      Isn't it already in the DMCA laws that complaints must have some merit with regards to fair use?

      not explicitly.

      the complainer has to assert under penalty of perjury that
      “We have a good faith belief that the above-described activity is not authorized by the copyright owner, its agent, or the law.”

      Universal argued that fair use didn't count as authorization - but was more like an excuse which protected a user from the normal consequences of their infringing usage.

      The court disagreed - they declared that fair use was an explicit authorization under the law.

      the ruling is here:
      https://www.eff.org/files/2015... [eff.org]

      • This is actually unusual (the court even said as much). Normally it's up to the defendant to assert fair use.

        I suspect if the copyright cartels hadn't been throwing their weight around quite so much the court would have ruled differently.
    • by suutar ( 1860506 )

      no. The DMCA requires that the submitter of the complaint be a copyright holder or an agent of a copyright holder (that part has perjury penalties to deter pranksters) and that the submitter have a good faith belief that the content infringes (which just means "someone/a computer algorithm told me it infringes and I don't know otherwise, that's my story and I'm sticking to it"). That's it.

    • Can't we use this DCMA takedown system to take down all content posted by the RIAA and pals? I'm curious, what's stopping someone from just submitting random DCMA takedown notices? Google has no idea who holds copyright for what song. We should use this weapon against them. The real solution is to starve the beast. Don't buy music, go to concerts, where more money makes it to the artists.
      • There's no reason you can't send random DMCA takedown notices. Just make sure that you have the copyright on whatever you claim is infringed on, to avoid perjury. (The post you just made is long and creative enough to count as a copyrighted work, and you have the copyright unless you transfer it.)

        Don't expect it to do much good. There is no legal requirement to take down material that gets a takedown request. It's just a way to avoid legal liability. Google is likely to accept takedown notices from

  • This is madness (Score:5, Informative)

    by Minwee ( 522556 ) <dcr@neverwhen.org> on Tuesday September 15, 2015 @10:24AM (#50524875) Homepage

    You mean that someone will actually have to _think_ before initiating legal action? And that we have some kind of duty to actually be right before laying down the law-hammer? What are we supposed to do with these fleets of autonomous sentry drones armed with fire-and-forget rocket dockets?

    Next you'll be telling me that we have to make sure we have the right address before we start foreclosing on homes. This isn't the America I grew up in.

  • Bitch please, RIAA (Score:3, Insightful)

    by Travelsonic ( 870859 ) on Tuesday September 15, 2015 @10:28AM (#50524909) Journal
    Seriously, it's an undue burden to check to make sure the law is actually being broken? Are these fucking morons kidding, or has their ego + sense of undue entitlement really gotten as big as I think it has?
    • by Snufu ( 1049644 ) on Tuesday September 15, 2015 @10:44AM (#50525015)

      The baby in question was wantonly stealing property of Prince and Universal Music corp. for personal self-promotion. Piracy by pre-schoolers costs artists and creators billions of dollars per year. Hopefully, in the future, infants will think twice before enjoying Prince's music unlawfully.

      • by ArhcAngel ( 247594 ) on Tuesday September 15, 2015 @12:22PM (#50525747)
        This keeps getting modded as Funny but little does /. realize Snufu is a legal clerk for the RIAA's law firm and was being quite sincere.
      • Hopefully, in the future, infants will think twice before enjoying Prince's music unlawfully.

        Especially since formerly, infants were not considering the ramifications of their behavior when enjoying the artist formerly known as Prince's music lawfully, or otherwise.

        • artist formely known as Prince

          He changed his name back to Prince a long time ago, assuming that was why nobody was buying his music (They wouldn't ask for a symbol at a store). Turns out the sales never recovered, so his latest theory is that babies are robbing him.

  • by phantomfive ( 622387 ) on Tuesday September 15, 2015 @10:30AM (#50524925) Journal
    But does it really matter when Youtube automatically censors so much?
    • But their censorship is already wildly variable and pointless. Skinny naked Asian girls with tiny squares of electrical tape over their nipples: absolutely fine, 500,000 views. A buxom woman wearing a full multi-layered outfit: 3000 views, reported for inappropriate content, owner fined.
      • I can accept the statement about skinny naked Asian girls, my desire for a reference being purely for prurient purposes. What happened with the buxom fully clothed woman? I don't need the visual (which is probably unavailable anyway), but I'd like to know more about the story behind that, and how posting a video incurred a fine.

  • very wrong summary (Score:5, Interesting)

    by BradMajors ( 995624 ) on Tuesday September 15, 2015 @10:31AM (#50524929)

    The ruling is that copyright holders must consider fair use being issuing a DMCA request. But copyright holders no longer use DMCA requests to have content removed on Youtube. Hence the statement that copyright holders must consider fair use before having content removed from Youtube is wrong.

  • Good ... (Score:5, Insightful)

    by gstoddart ( 321705 ) on Tuesday September 15, 2015 @10:31AM (#50524931) Homepage

    It's about fscking time we started telling the copyright owners that there are non-infringing uses which are considered fair use and aren't robbing you of revenue. People aren't setting out to do something which is depriving you of income, they're taking cute videos of their damned babies and putting them on YouTube.

    Nothing at all about a video like this cuts into their revenue or adversely impacts them ... it's just assholes deciding there is no such thing as fair use. And the labels whining that it puts undue burden on copyright holders

    is exactly the fucking point ... as opposed to them placing an undue burden on the entire world to not ever let anything happen unless they've pre-cleared it to copyright holders.

    A brief snippet of a baby dancing to a Prince song (with low quality audio and everything) is pretty much the definition of fair use. It sure as hell isn't going to harm Prince in terms of record sales.

    The copyright lobby seems to have decided the world operates solely at their sufferance. It's about time they got reminded it doesn't work like that.

    • Not only that, but it makes free publicity for the song. Worst case scenario, have YouTube add a link to iTunes/Amazon/etc to buy it. It doesn't harm the people putting the video on YouTube, it doesn't generate hate toward the labels and it has the potential to actually make money instead of wasting it on lawyers and wasting the government/public money on lawsuits.
      • by Calydor ( 739835 )

        That is actually a really good idea.

        Enforce a lower sound quality when a copyrighted song is detected (let's say something like radio quality?), add a link to buy the song for less than a dollar on iTunes, Amazon and whoever else signs up for that, and voila. Everyone wins.

        Might even make it easier to find out what that song you're hearing is called so you can buy it.

        • YouTube Content ID's "monetize" setting does exactly as you suggest: identify the artist and title of the recording and offer links to stores selling a legit download. However, some music publishers and record labels in some countries choose to either use YouTube Content ID's block setting instead of its "monetize" setting or send notices of claimed infringement pursuant to OCILLA. In this case, Prince and Universal did the latter. And video game reviewers on YouTube have tended to get up in arms even over

          • Didn't work for me. One of my raspberry pi parrot videos [youtube.com] used a snippet from Elvis' Blue Christmas. Sony sent a takedown notice to Google and took it down. Two appeals resulted in a strike on my account due to "Copyright Infringement".

            So much for "fair use". In light of this case, I wonder if I should put the video back up?

            • by tepples ( 727027 )

              You got caught by the policy of "some music publishers and record labels in some countries".

              Whether a use is a fair use is for a judge to decide. I'd recommend getting a lawyer before making a high-profile fair use of a substantial snippet of non-free music, especially if the snippet is added in post.

            • I have the same problem. I used a karaoke version of a song to write and record a parody of something unrelated, uploaded to youtube for purely entertainment value without commercial value or ads, and had it taken down.

      • Re:Good ... (Score:4, Insightful)

        by gstoddart ( 321705 ) on Tuesday September 15, 2015 @11:34AM (#50525411) Homepage

        I disagree, and I think that is moronic.

        I don't want every fucking thing I see to have even more damned analytics and ads embedded in it ... click here to buy this hat, click here to buy this chair.

        How about all the assholes who want to monetize every damned thing we do fuck off, stop acting like they are entitled to inject themselves into every moment of our lives, piss off and realize fair use is a legal right, and generally stop fucking up society.

        I swear to god I feel like Reg the Fucking Blank with the blipverts which killed people.

        In the physical world I'd be forced to punch people who acted like this. Why the hell we should have to put up with this shit online is baffling to me.

        The world doesn't want every fucking stupid product shot to lead to an add, a link to buy, or some asshole add tracking company injecting themselves at every moment.

  • by silentcoder ( 1241496 ) on Tuesday September 15, 2015 @10:38AM (#50524971)

    Sucks for the recording companies that the case got heard in S.F. Liberal city surrounded by tech companies, no wonder the Judges there weren't as eager as their texas counterparts to suckle thoughtlessly on the genitalia of any incorporated entity with an IP claim.

  • by mark-t ( 151149 ) <.markt. .at. .nerdflat.com.> on Tuesday September 15, 2015 @10:53AM (#50525083) Journal
    So they ruled that rights holders are supposed to consider fair use before making takedown requests....

    There are numerous problems with this notion.

    First, there is no particular benefit to the rights holders to do so, nor did I note any penalty for a rights holder that does not. They say that right holders "should" do something, but so what?

    Secondly, there's every chance that larger rights holders will still be able to strong arm the average person with bogus claims because the latter aren't as likely to have the money to even try and fight them anyways, so how much consideration fair use was given before making the takedown request will never even be analyzed.

    Third, they can say they "considered it" and then progress forward anyways. There is no mechanisms to ensure that the rights holder gives the matter any genuine and sincere consideration before invoking litigation, particularly if they think they will win simply because they have more money to throw at the case, as I mentioned above. The notion that they may expose themselves to liability is probably not going to worry them if the smaller fish is unlikely to have the resources to actively pursue such litigation anyways.

    It's a neat idea.... but without teeth, it's worthless.

    • First, there is no particular benefit to the rights holders to do so, nor did I note any penalty for a rights holder that does not.

      The penalty is that rights holders who do not can be sued for damages, which is what's happening in this case.

      • So no change then?

        • So no change then?

          Yes, it's a change, because prior to this ruling it was generally believed that suits like this one could not succeed. This case was a long shot, a Hail Mary thrown by the EFF. The court has said that this is now business as usual. That's huge.

          • I was under the impression that the whole DMCA legislation related to whether or not someone owns the content. That is something that can't be sued over and needs to go through various processes. This case seems to be about fair use, that was always something for a court to decide.

            • I was under the impression that the whole DMCA legislation related to whether or not someone owns the content. That is something that can't be sued over and needs to go through various processes. This case seems to be about fair use, that was always something for a court to decide.

              Right. But normally, the only party that has any standing to sue is the rights holder.

              What has happened here is that the copyright owner sent a legitimate (per the DMCA) takedown request. Lenz responded with a counter-notice. All fine; the next step is for the rights holder to file a lawsuit for copyright infringement, if they want. They can decide to just drop it, or they can just be quietly menacing and not do anything, leaving the issue hanging over the poster for years.

              This is bad because it means t

      • by mark-t ( 151149 )
        Sure... except that they won't be, because the people that will typically get these takedown notices are unlikely to have the resources to pursue costly litigation in the first place.
        • Sure... except that they won't be, because the people that will typically get these takedown notices are unlikely to have the resources to pursue costly litigation in the first place.

          It only takes a few who are willing do do it... like Stephanie Lenz, with the support of the EFF. And now it's been made clear that such suits can actually proceed.

  • by Anonymous Coward

    The ruling still suggests that a computer algorithm to decide on the fair use question (such as the ones in use by Youtube et al) are sufficient to take material down. There was a dissenting opinion suggesting that probably wasn't good enough as algorithms don't have the capability or context to decide on all four points in the definition of fair use, but he was overruled.

  • by Anonymous Coward

    As anyone with half a brain knows, the RIAA, MPAA, and publishers want to eliminate Fair Use, and Right of First Sale. as well as wanting to make it so that you cannot own a copy of any music, video, or book or ebook. What these malignant entities really want is for everyone to have to pay a fee whenever a song is listened to, a video is watched, and a book is read, either in whole or in part.

    They keep TRYING to make it so that you don't own what you buy, but just rent it from them. Well, screw them! Whe

  • by HangingChad ( 677530 ) on Tuesday September 15, 2015 @11:15AM (#50525265) Homepage
    There are too many times rights holders throw out a complaint, even when it's a clear case of fair use. Then they put the burden of proof on the publisher to prove it's really fair use. It's abusive and unfair and about time RIAA and that ilk got their pee-pee whacked for papering the landscape with infringement threats.
  • by MobyDisk ( 75490 ) on Tuesday September 15, 2015 @03:02PM (#50526981) Homepage

    Is this a DMCA case or not?

    The DMCA requires that the copyright holder signs an affidavit indicating that they own the content. Does it also require them to state that it violates fair use? But if YouTube provides a "back door" where certain "privileged" copyright holders can take down videos without having to file actual DMCA requests, then the protections the law provides are moot. It is yet another case where 3rd-parties are interfering with our property rights. [slashdot.org]

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