When a service provider processes a takedown notice
under the DMCA, does it need to consider the likelihood of Fair Use first
before honoring the request, or does this come into play only later as an “affirmative
defense” for the supposedly infringing publisher? Corynne McSherry of
Electronic Frontier Foundation weighs in on this in analyzing the complicated
if silly litigation in Massachusetts, Gina Crosley-Corcoran v. D.r Amy
Tutuer. There are questions as to whether
using a photo taken by someone else is “fair use” if published to make an
ironic or humorous point. The EFF story
is here.
The practical danger is that “the establishment” can
quell troublesome speech by making frivolous claims to ISP’s. It’s not clear to me how YouTube would
process these, since it does have some automated screening for copyright. YouTube also closes accounts for repeated
copyright claims, but some of these could be frivolous. I run into this when embedding videos. I generally try to pick videos that appear to
have legitimate sources (preferably with the original content owner, like a
movie studio), But sometimes I can’t find one, and then some months later the
embed doesn’t work because the poster of the video had his or her account
closed. So far, bloggers who have
embedded these videos haven’t been penalized in anyway; how could they know
whether a poster of a video will get taken down later?
The Carter Law Firm tells a story (in Feb. 2013, “DMCA
Takedown Notice for Your Original Content”) of an intentionally fraudulent DMCA
takedown notice. Here the lawyer says
that isn’t the service provider’s place to question a notice, so there is some
disagreement here (EFF says the law's wording says otherwise.). The case involves “Retraction Watch”, and a site that
duplicated some of it and then intentionally claimed that it had been the
original owner. The lawyer explains the “counter
takedown notice” procedure.
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