Tuesday, September 17, 2013

Do service providers have to consider Fair Use before honoring a takedown notice? Some controversy

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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