EFF scores a giant victory for fair use and dancing babies

[Read the post]


MEATY. I can’t frickin’ wait for people being censored by rampant DMCA abuse turn the tables a little bit.


I think you’re overlooking the fun that artists like R.E.M. and Survivor could have censoring politicians who use their music without a license.

No, there’s a legitimate complaint there. It’s not censorship, even if they pick and choose.


hmm, it looks like the forces of good and righteousness are winning this one. I’m gonna have to vote for one of those kids for president to help my side out.

They CAN sue, but how many people WILL? We need a ruling that deems these fucking auto-takedown bots to be complete horseshit. I’m pretty sure that’s the correct legal term.


I suspect that if Universal ends up having to pay attorneys’ fees that there will be a lot of lawyers who’ll be chasing clients with standing to sue.


And of those who WILL sue, how many have pockets deep enough to outlast the inevitable stalling by the corporations who have lawyers on the payroll? It doesn’t matter if you’re right if it would take several years and tens or hundreds of thousands of dollars that you just can’t afford to spend to win.

1 Like

Great decision but it’s toothless if people have to sue and prove fair use. We need punishment parity for DMCA takedown abuse;


I’d love to see that… But with, for example, YouTube’s auto-takedown bots that routinely take down shit that they’re not supposed to, how will the lawyers find those people? It’s not like YouTube is publishing a list of all the stuff that they auto-remove.

Bots are people too, my friend. They can and should be sent to jail!


Nope. It’s the other way. If plaintiff’s attorneys can get their fees back, then the longer the deep-pocketed adversaries stall, the more the attorneys get when they win.


This is a terrible decision by the courts and the reason is one that everyone here is ignoring. You think you’ve won something but you have really lost something…you’ve given even more power to technology and lost even more humanity.

The judges ruled today that copyright holders “must consider the existence of fair use before sending a takedown notification.”

The judges are optimistic that computer-driven copyright policing could strike the right balance. “We note, without passing judgment, that the implementation of computer algorithms appears to be a valid and good faith middle ground for processing a plethora of content while still meeting the DMCA’s requirements to somehow consider fair use,” Tallman writes. In situations where a video and audio track matches “nearly the entirety” of a sample submitted by copyright owners, a computer program could still be thought to have taken fair use into account. Copyright owners could use human employees “to review the minimal remaining content a computer program does not cull,” he suggests.

Wow…these judges…really fucking stupid. Computers and algorithms do not posses cognitive empathy nor do they understand nuance. Humans alone have great difficulty understanding fair use, so suddenly we’re suppose to have a machine that can do it? Fair Use is ultimately something that has to be determined by a Judge in a court of law, but now we’re going to trust an algorithm to analyze and make decisions on something that involves a level of understanding well beyond the capacity of a machine, much less most humans?

So thinking you won something is ridiculous. What you’ve really created is what will become another level of complexity. Either the possibility that there will be some technology created to analyze fair use which will further make this issue worse, or you’ll see rights owners get even more heavy handed by employing a vast team of humans who will just remove everything and claim “we considered fair use” as often as users claim they are covered by “fair use.”

This is not a win. Here’s what an algorithm must decide:

The four factors judges consider are:
the purpose and character of your use
the nature of the copyrighted work
the amount and substantiality of the portion taken, and
the effect of the use upon the potential market.

The Transformative Factor: The Purpose and Character of Your Use

In a 1994 case, the Supreme Court emphasized this first factor as being a primary indicator of fair use. At issue is whether the material has been used to help create something new or merely copied verbatim into another work. When taking portions of copyrighted work, ask yourself the following questions:

Has the material you have taken from the original work been transformed by adding new expression or meaning?
Was value added to the original by creating new information, new aesthetics, new insights, and understandings?

When taking portions of copyrighted work, ask yourself the following questions:

Has the material you have taken from the original work been transformed by adding new expression or meaning?

Was value added to the original by creating new information, new aesthetics, new insights, and understandings?

1 Like

If algorithms can’t make determinations about fair use, then perhaps they shouldn’t be in charge of making mass-scale, autonomous, arbitrary decisions about censorship.


Really…censorship? That’s stretching it a bit.

Mass-scale autonomous decisions about “censorship” is a response to a massive scope and scale of infringement on platforms like YouTube that has nothing to do with censorship and you know it. Pulling a video of a baby jumping in a video to music is hardly censorship and she had every right to challenge that assertion by the label.

EFF didn’t win the case based on whether or not this was fair use, but that Universal didn’t first make a determination of whether it was, instead automating a takedown. It could still have been found to be infringing on the rights of the owner.

Issuing a takedown gives the users the ability to challenge that takedown and then declare fair use. Now what we might get is an automated process that makes this process worse, indemnifying the rights owners by saying “we used software according to the court that checked for fair use.”

Great idea. This isn’t a win…this is whipped cream and a cherry on top of a file of shit.

IF they win. What’s to prevent the corporation’s attorneys from filing mountains of paperwork and forms to which your attorney (and I’m using “you” and “your” in the general sense) needs to respond, to draw things out and make it more expensive for you? If your attorney is willing to work for a portion of whatever you win or receive as a settlement, that would be one thing.

But what if you’re paying your attorney?
Do you have the money to handle paying your mortgage or rent, buying groceries, and paying an attorney to respond to whatever their attorneys (who are going to get paid regardless of whether they fight you or sit at their desks twiddling their thumbs) throw at them? For how long?
Do you need to be in court for more time than you have vacation days? What happens when you have to choose between going to work and going to court?

The way I see it (and I could be wrong; I’ve thankfully never been involved in a lawsuit to where I had to do anything) it’s like the old joke with your friend and the bear. The corporation doesn’t need to outrun the legal system, they just need to outrun your bank account.

The reason this whole system is broken is because no one ever put any thought into how to work with rights in a digital age. Today, most ideas to solve the problem actually only serve to exacerbate it or further muddle the issue. YouTube, for example, is still just a swamp of orphan works which exploits artists while wrapping itself up in the flag of freedom and “censorship.” Google is in the business of making money off the works of others…that’s what they do. There is no ContentID system for illustrators or photographers and yet there are billions of works taken, mixed, remixed, with no attribution or compensation.

Creative Commons, the often cited solution for rights in a digital age has done nothing really to solve anything. It works on voluntary attribution and is super fucking complicated for the average person in an age of “take and go”. An example:

But to sit here and call this a giant victory…puh-lease. All this case does is further complicate copyright. Fair use is already a well intended, but ultimately flawed concept because it relies on a judge to decide, for example, what is funny or transformative. I expect this will likely go to the Supreme Court.

To your point of litigation, I have been involved in a long drawn out expensive corporate lawsuit, which cost me not just a great deal of money, but time and stress…I vowed not to do it ever again…no one wins except lawyers.

This topic was automatically closed after 5 days. New replies are no longer allowed.