Thursday, May 02, 2013

Does DMCA require copyright owner to consider fair use before requesting takedown? Also, chilling effects in agribusiness.

Does a copyright owner sending a takedown notice under the DMCA have to consider the possibility that the defending speaker “copied” a small amount of material under Fair Use?
There seems to be some controversy, but in general it seems that the courts are saying, yes it does.  Otherwise, a copyright owner could use DMCA notices to censor content critical of the owner if there is even one word quoted without permission.  However, advocates of the rights of content owners have said that under the DMCA, anything can be ordered taken down if explicit permission for use had not been given.  It could then be restored if a hearing or court determines fair use.  Consider the practical chilling effects.
There is a posting about the matter from 2008 on “Internet Cases” about Lenz. V. Universal, here
Electronic Frontier Foundation has a post by Daniel Nazer, about a newer, medical-tinged case, between Gina Crosley-Corcoran and Dr, Amy Tutuer.  In this case, Corcoran sent a followup DMCA notice even after Tutuer changed hosts.   The link is here

I’ll also mention another issue that came across my email, the “Anit-AG” bill in Tennessee forcing whistleblowers to turn over evidence of agricultural cruelty within a short time; a bill that tries to silence critics with unreasonable deadlines for journalists and bloggers.  The ACLU has a petition link here

Update: May 4

Just want to note, the DMCA "fair use" question could be particularly important if an entire blog is removed because of one posting, or an entire site taken down because of one specific URL on the site.  On YouTube, individual videos get taken down; sometimes entire accounts are closed for repeated requests if not successfully counter.  

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