Thursday, September 17, 2015

Important developments in Fair Use (use of copyright for censorship; DMCA and presumptive right to Fair Use)


In an important case, the Eleventh Circuit in Miami has ruled against a plaintiff, Ranaan Katz, who had sought to use copyright law to try to stop a blogger, Irina Chevaldina, from using photos of him in posts critical of his business practices.  The case was known as Katz v. Chevaldina.  Furthermore, the court ordered the plaintiff to pay the defendant’s attorney’s fees. This case has been previously discussed here May 18.
  
The court also held that the plaintiff’s attempt to copyright his photo was not justifiable by normal use of copyright law and only wanted to suppress the defendant’s speech, as part of “doing business.”  Electronic Frontier Foundation has the story by Jamie Williams here
  
  
There is also an important development in the 9th Circuit in the “Dancing Baby” case, Lenz v. Universal. A piece in EFF by Parker Higgins and Daniel Nazer, Sept. 15, reports that plaintiffs must make a good-faith effort (“subjective”) to consider Fair Use before asking a service provider  (like YouTube) to do a DMCA Safe Harbor takedown. It’s important that speakers have a legal presumption that they make invoke Fair Use when the speak;  they are not limited to using “Fair Use” as an “affirmative defense” after the fact". The link is here
  
This case was considered here July 6.  The text of the opinion is here
  
One YouTube comment (to post above) claims that the YouTube Contend-ID system would no longer work as a result of this ruling. I’m not sure I follow the poster’s reasoning.

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