Corporate copyright holders have taken to issuing Digital Millennium Copyright Act (DMCA) takedown orders with wild abandon. Such wild abandon, in fact, that they’ve begun to overstep legal bounds.
Take Universal. In May of last year, the media conglomerate went after conservative columnist Michelle Malkin for embedding clips from American Idol and several music videos in a video criticism published on YouTube. That this clearly met any reasonable fair-use test didn’t so much as slow down Universal and its DMCA takedown order. It was of apparently no consequence that the entire music videos were available on YouTube. The Electronic Frontier Foundation (EFF) filed a counter-notice on Malkin’s behalf, informing the video service that the use was non-infringing, and the work was eventually restored.
Then, a month later, Universal issued a DMCA takedown order for a Stephanie Lenz video on YouTube of her infant dancing to background stereo music to which Universal holds copyright. A 30 second video clip. Lenz immediately responded to Universal’s takedown demand with a counter-notice, but YouTube never reinstated the original work. The Electronic Frontier Foundation (EFF) filed suit against Universal, claiming the music used in the clip was “self-evident non-infringing fair use.”
The DMCA provides protection against misuse in that lawsuits can be brought against false takedown notices. Viacom, for example, was forced to apologize for its takedown notice of a video clip satirizing Stephen Colbert after the EFF filed suit against the media giant.
After a series of what had to be embarrassing successful counter-notices, you’d think the corporate media conglomerates would quickly learn and back off. Apparently they were incapable of either.
In an update to the suit filed by the EFF on behalf of Lenz, this week Universal told Judge Jeremy Fogel that Lenz’s video clip was an infringement even though it may be fair use. Simply Orwellian — and I use the term advisedly — political manipulation of the language by obfuscation. “Are you saying there cannot be a misuse of a takedown notice if the material is copyrighted?” asked Judge Fogel. “I don’t think ‘fair use’ qualifies,” Kelly Klaus, the Universal lawyer, replied.
In case you’ve lost track, the fair use doctrine permits limited use of copyright-protected materials without permission.