Fair Use and the DMCA
According to Wikipedia:
"DMCA Title II, the Online Copyright Infringement Liability Limitation Act ("OCILLA"), creates a safe harbor for online service providers (OSPs, including ISPs) against copyright liability if they adhere to and qualify for certain prescribed safe harbor guidelines and promptly block access to allegedly infringing material (or remove such material from their systems) if they receive a notification claiming infringement from a copyright holder or the copyright holder's agent."
But what constitues material? Twittering as a character? Your logo in a video? A mashup? Things like Muxtape or Scrabulous? Do these things actually help spread your brand? Should they be taken down according to the DMCA?
What about libraries? Are they against the DMCA? After all you can go to a physical library and get a book....for free....or is it because of distribution on the internet......
Of course if your media without your permission on YouTube violates the DMCA. For example, if the Dark Knight in its entirety were to be shown on YouTube; that would be a clear infringement. What if you use a popular song in a home video, as in the case of Stephanie Lenz and Prince? YouTube received a takedown notice from Universal and Lenz fired back saying that the song was Fair Use. If that's the case, then where is the line from where the DMCA rules and Fair Use?
Fair use comes in handy - the following activities from the EFF are allowed:
* whistling a tune while walking down the street (public performance)
* cutting out a New Yorker cartoon and posting it on your office door (public display)
* photocopying a newspaper article for your files (reproduction)
* quoting a line from The Simpsons in an email to a coworker (reproduction)
* reverse engineering of computer code (reproduction)
* "time-shifting" a radio or television program (reproduction)
* playing an excerpt of Roy Orbison's "Pretty Woman" in a copyright law course (public performance)
* quoting from a novel in a review (reproduction)
In what Fogel said was a "case of first impression," Universal attorney Kelly Klaus said Universal or other copyright holders are not liable for damages when somebody asserts fair use to reverse a takedown notice. Lenz's lawyers, from the Electronic Frontier Foundation, say her 29-second video, with fuzzy camerawork and unclear sound, was such an obvious noncommercial fair use that Universal should have to reimburse her for the costs of taking it out of circulation for more than a month last year.
This new ruling may make big media more weary of serving up take down notices but at what cost? How can they continue to protect their copyright especially when in some instances they are playing whack a mole and cannot review every individual infringement?
Did libraries kill the book industry? Did radio kill music? Did television kill the film business? Perhaps the Internet will go the same route as the others by promoting their media and finding alternative ways to monetize than actually selling the media.....
An update - AMC's agency told them that keeping the Mad Men Twittering was good for spreading the word of the show. Twitter has restored these accounts....
Posted: September 8, 2008