More (and more) good news for fair use

8 10 2008

Last year I kept being amazed at all the progress I saw in the adoption of more realistic business models by the music as well as other industries. I thought it was a watershed year for loosening up the DRM stranglehold and making more content freely available to consumers. But there were also a number of court decisions confirming the importance of fair use — mainly the search engine cases, though there was that wonderful Grateful Dead case out of the 2nd Circuit. Thus, it was also a watershed year for the expansion of transformational, or creative fair use.

Well, the trend is continuing. I just read a note in Wired about another fair use decision, this one relating to the “take-down notice” procedure mandated by the DMCA’s limitation on liability for Internet Service Providers (Section 512): Judge: Copyright Owners Must Consider ‘Fair Use’ Before Sending Takedown Notice | Threat Level from This is the process that has prompted the “chilling effects” website that chronicles the threat to free speech these “shoot first and ask questions later” notices pose. The judge in the case has found that copyright owners have to take fair use claims into account *before* they send these notices. That is a major, major victory for those who make creative uses of others’ works, who build upon them, or incorporate only small parts of them into new works, where the strongest claims to fair use lie.

This holding is only one step along the way for the plaintiff in this case. The case isn’t over and EFF, who is representing her, still has a long way to go to show that Universal Music acted in bad faith in not considering fair use. But at least we have this initial holding that one must at least consider it!

There is very encouraging language in the court’s opinion regarding the question of whether fair use qualifies as use “authorized by law.” The relevant part of Section 512 requires copyright owners to include in their take-down notices, among other things,

(v) A statement that the complaining party has a good faith belief that use of the
material in the manner complained of is not authorized by the copyright owner,
its agent, or the law. (emphasis added)

The court finessed the tricky question of whether fair use is simply a defense to an allegation of infringement (or a right), by focusing simply on whether it is authorized lawful use. The court unequivocally holds that fair use is authorized use. Thus, the copyright owner can not say that a use is “not authorized by law” unless it has considered and rejected the viability of a fair use claim.

The good faith/bad faith issue is the next one to be considered by the court. It will be interesting to watch as the case continues its way through the legal process.
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