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Looking for Fair Use in the DMCA's Safety Dance
Akron Intellectual Property Journal (2009)
  • Ira Nathenson, St. Thomas University School of Law
Like a ballet, the notice-and-take-down provisions of the Digital Millennium Copyright Act ("DMCA") provide complex procedures to obtain take-downs of online infringement. Copyright owners send notices of infringement to service providers, who in turn remove claimed infringement in exchange for a statutory safe harbor from copyright liability. But like a dance meant for two, the DMCA is less effective in protecting the "third wheel," the users of internet services. Even Senator John McCain - who in 1998 voted for the DMCA - wrote in exasperation to YouTube after some of his presidential campaign videos were removed due to take-downs. McCain asked YouTube to review take-downs targeting campaign videos before removing them. Unsurprisingly, YouTube declined in fear of losing its safe harbor. This Article does not adopt McCain's suggestion that service providers engage in individualized review of campaign take-downs. But this Article takes extremely seriously an assumption underlying McCain's request, namely, that fair use might be better protected by the DMCA as it is currently written. This Article puts forth a "fair-use friendly" way of reading the DMCA to better protect users of online services. As a starting point, as noted by the court in Lenz v. Universal Music, copyright owners must consider fair and other non-infringing uses before sending take-down notices. Expanding upon Lenz, this Article examines the structure of the Copyright Act and broader principles of procedural fairness, concluding that permitting copyright owners to obtain removal of fairly used materials would accomplish de facto ex parte seizures of speech. Accordingly, copyright owners must "stop and think" before sending take-downs. Although a "stop and think" rule will help to deter frivolous take-downs, some will still be sent. Helpfully, the DMCA gives users the right to get materials put back via counter-notice, but unfortunately, the scope of that right is frustratingly unclear. The statute indicates that a user must state "under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled." Does that embrace only mistakes of fact, or also mistakes of law? Interestingly, the few authorities to address the question have done so only in passing, and even then, split on whether a mistaken view of fair or other non-infringing use qualifies as a basis for put-back. This Article seeks to answer that question. Looking to legislative history as well as the structure of the DMCA, this Article concludes that a copyright owner’s mistake of law - i.e., regarding whether the materials were fairly used or are otherwise non-infringing - must be a proper basis for put-back. Moreover, this Article rejects the suggestion that permitting fair use as a basis for put-back will lead to a tidal wave of meritless counter-notices. Any such concerns are more than adequately addressed by DMCA, which requires users who send counter-notices to expressly identify themselves, submit to jurisdiction, and possibly become targets for expensive copyright litigation.
  • Cyberlaw,
  • intellectual property,
  • fair use,
  • copyright,
  • legislation,
  • statutory interpretation,
  • civil procedure,
  • DMCA,
  • Digital Millennium Copyright Act,
  • 512,
  • intermediary liability,
  • take-down,
  • takedown,
  • counter-notice,
  • counter-notification,
  • counternotice,
  • Lenz,
  • McCain,
  • Ashcroft
Publication Date
Citation Information
Ira Nathenson. "Looking for Fair Use in the DMCA's Safety Dance" Akron Intellectual Property Journal Vol. 3 Iss. 1 (2009)
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