[Beowulf] DMCA take down notices

Andrew Holway andrew.holway at gmail.com
Sat Nov 23 02:01:02 PST 2013


http://www.lexology.com/library/detail.aspx?g=4472d242-ff83-430a-8df4-6be5d63422ca

There is a legal mechanism to deal with this which protects both the
copyright holder and the host. Please can we talk about supercomputers
again because this "issue" is _EXTREMELY_ boring.

One of the lurking issues in the murky waters of copyright fair use is
the takedown notice provision of the Digital Millennium Copyright Act
of 1998 (the “DMCA”).  The DMCA, codified at 17 U.S.C. § 512,
implements two 1996 World Intellectual Property Organization treaties
and absolves internet service providers (“ISPs”) who disable allegedly
infringing content when notified by the copyright holder.  In
practice, this is known as a “takedown notice,” and serves to protect
ISPs like YouTube from secondary infringement if a user posts
something with infringing content (the easiest example being an
unedited clip of a copyrighted movie).  Copyright holders patrol the
internet to various degrees, but § 512 gives the holders a tool to
encourage compliance, and ISPs a way not to be sued out of existence.

A harder case comes when a user posts content that contains
copyrighted work for some other purpose, whether expressive or
critical, opening a fair use analysis.  As the Ninth Circuit
explicated just recently, fair use is a sensitive analysis, and can
often be hard to predict.  Thus, in practical terms, ISPs have little
incentive to give the allegedly infringing poster the benefit of the
doubt; if the ISP takes down the content at the request of the
copyright holder it faces little downside, but if it gets the question
wrong believing in fair use, then the ISP is in the crosshairs of
infringement liability.

Not surprisingly, the takedown notice is popular among major studios
and ISPs, far less so among video artists and essayists.  A new
lawsuit filed here in Boston by Harvard Law School Professor Lawrence
Lessig seeks to impose some order to this dynamic.  Lessig has been at
the forefront of challenging other parts of the Copyright Act arguing
(albeit unsuccessfully) in Eldred v. Ashcroft that the extension of
the Copyright Act’s term in the 1998 Sonny Bono Copyright Extension
Act was effectively indefinite and therefore beyond Congress’s
constitutional power).  Lessig’s new case is against Liberation Party
Music Ltd., the copyright holder to the song “Lisztomania” by the
French band Phoenix.  As Lessig alleges, he gave a series of “open
lectures,” including one in South Korea in 2010.  As part of those
lectures, later posted on YouTube.  Lessig showed several clips of
amateur Internet content, including a montage of third-party content
by various posters showing themselves dancing to the song.  Lessig
showed this montage, he says, “to illustrate how young people are
using videos and other tools to create and communicate via the
Internet.”

On June 30, 2013, Lessig alleges, YouTube informed him that Viacom had
requested the “Open” lecture be taken down, which YouTube proceeded to
do.  After correspondence with Lessig and his fair use argument,
YouTube restored the video taken down at Viacom’s request.  It later
removed the video again in response to a takedown request by
Liberation Music, which also threatened to sue Lessig.

Lessig has now preemptively sued Liberation for a declaration that his
video is fair use.  The lawsuit is less than a week old, so it will be
some time before it adds anything to the fair use debate, but the case
will be watched by video critics and users everywhere.  Given Lessig’s
track record, one can expect the final word not to come for some time
until the appellate courts have had their say.


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