Copyright – Fair Use

Copyright is basically a way for authors of books, songs, music, pictures, and movies to protect their work and profit from it. In Second Life™ we have to deal with copyrights. A new court case just clarified the requirement for consideration of fair use prior to filing a take-down notice.

This is an example of the problem:

In the video above people are taking candied videos of their kids and those got compiled into a YouTube presentation. You probably noticed but didn’t think about the background music caught by the video camera. In a case known as The Dancing Baby Universal filed a DMCA take-down against a Ms Lenz because a song by Prince was playing in the background of her video. It wasn’t added later. It was what the baby was dancing to when the video was candidly captured. 

Over time people have realized there needs to be some fair use of all these things. If copyright were overly strict radio stations couldn’t play music and TV stations couldn’t show movies. But, copyright holders can license use of their creations, which is the formal process for using copyrighted material. You enter into a formal agreement with YouTube via their terms of service before posting video.

But, what about the music in the background when you take a video at a party? Do you have to edit out the music or chase down permission to use it? What if there is a TV show in the background? How does a literature teacher quote parts of a book? The concept of Fair Use makes it possible to do things.

We know that copyright was designed so that in a free market people could profit from their talent and effort. Without that protection many creative people would be working a 9 to 5 to pay the rent and have way less time for creative efforts, making the world an artistically poorer place.

Here DMCA was misused by a large company to harass an individual and force YouTube to take down Ms Lenz 29 second video.

We see lots of inappropriate DMCA Take Down Notices being misused in Second Life. The one filing the notice is protected by the complexity and cost of the effort to prove a notice was an abuse of DMCA and damaging to victim. Universal has been making a practice of ignoring Fair Use and filing take-down notices because they could get away with it. Ms Lenz fought back.

This case will help those people that can claim Fair Use by holding the instigator of a take-down notice liable for their action. It sets the precedent that the instigator must consider Fair Use before filing a take-down notice under DMCA.

This doesn’t really solve the upside down DMCA concept of you are guilty until you prove your innocence. But, it helps a bit by making the success of a law suit against wrongful take-down more likely. That will hopefully make people more cautious with their filings.

See Lenz v Universal

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