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Universal claims fair use is fair game for DMCA takedown

21 July 2008 11:36 by Rich "vurbal" Fiscus | 6 comments

As we told you last week, a lawsuit against Universal Music Group (UMG) for allegedly abusing the DMCA takedown process has finally come before a judge. In that case Stephanie Lenz, with the backing of the Electronic Frontier Foundation (EFF), is claiming that the takedown request issued was made in bad faith and UMG should be penalized as a deterrent to future meritless claims.

In an interesting twist UMG's lawyers seem to actually agree that the YouTube video in question is fair use rather than copyright infringement, but they're arguing that they don't have to take that into account before they issue a DMCA takedown request.

When asked by U.S. District Judge Jeremy Fogel "Are you saying there cannot be a misuse of a takedown notice if the material is copyrighted?" UMG attorney Kelly Klaus replied "I don't think 'fair use' qualifies."

The question was in regard to the wording of the DMCA, which states "Penalties are provided for knowing material misrepresentations in either a notice or a counter notice." Material misrepresentation means lying about the facts.

It also specifically identifies parties who are covered by this as "Any person who knowingly materially misrepresents that material is infringing, or that it was removed or blocked through mistake or misidentification." UMG is arguing that this passage only applies to parties falsely claiming ownership of a work, but the wording clearly seems to indicate otherwise.

There's no word on when we can expect to see a decision from Judge Fogel. His decision could have chilling implications for many people. Under UMG's reading of the law it's not their responsibility to distinguish between fair use and copyright infringement, even if it's obvious, before making legal claims abouit a work.

It makes you wonder how many times this has happened to someone who didn't know how to fight back.

Permalink to this article | Topics: Lawsuits & Legislation Online video

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IFPI unapologetic after improper DMCA takedown (29 July 2008)

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Mom fights music giant over DMCA takedown notice (19 July 2008)

Library of Congress report is critical of DMCA (19 July 2008)

EMI sues sites over user-uploaded videos (3 July 2008)

Judge tells YouTube to turn over viewing logs to Viacom (3 July 2008)

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Discuss this article!
blueroad (Newbie) 21 July 2008 14:28
you gotta be fuking kiddin me..first the "we dont need no stinkin proof" article and now this? pigs..filthy beurocratic capitalistic pigs.. The BPI Are: SONY, UNIVERSAL, WARNER GROUP, EMI. The RIAA Soundexchange Are: SONY, UNIVERSAL, WARNER GROUP, EMI. The IFPI Are: The same anti consumer lot as listed above! The MPAA Are: SONY, UNIVERSAL, WARNER GROUP, DISNEY, PARAMOUNT, FOX. [ + quote] This message has been edited since posting. Last time this message was edited on 21 July 2008 14:31
ZippyDSM (AfterDawn Addict) 21 July 2008 16:35
*Originally posted by blueroad:* you gotta be fuking kiddin me..first the "we dont need no stinkin proof" article and now this? pigs..filthy beurocratic capitalistic pigs.. no brainz! dun tellz me you got whacked again!?!? :P anyway.... they need to be held liable for spamming out takedown notices, I'd say 10-25G a over turned takedown notice should make them stop and more carefully look and tag clips. [ + quote]
mspurloc (Member) 21 July 2008 22:17
Any judge who sides with them is so obviously corrupt that he should be removed immediately. [ + quote]
Hardwyre (Newbie) 30 July 2008 13:23
But everyone knows the U.S. has the best judicial system money can buy... [ + quote]
1bonehead (Senior Member) 30 July 2008 16:40
Maybe we need the mafia to judge this case. As even they have a code of honor, whereas the legal system in the US, ? The BPI Are: SONY, UNIVERSAL, WARNER GROUP, EMI. The RIAA Soundexchange Are: SONY, UNIVERSAL, WARNER GROUP, EMI. The IFPI Are: The same anti consumer lot as listed above! The MPAA Are: SONY, UNIVERSAL, WARNER GROUP, DISNEY, PARAMOUNT, FOX. [ + quote] This message has been edited since posting. Last time this message was edited on 30 July 2008 16:43
FredBun (Senior Member) 2 August 2008 13:47
quote,,But everyone knows the U.S. has the best judicial system money can buy... Man did you hit the nail on the head [ + quote]