Fair Use and Abuse

Law.com has an article up about a Digital Millennium Copyright Act (DMCA) takedown notice that has some very serious implications for those of us who enjoy the new frontier of social technologies.

Here’s what happened: someone posted a 29 second clip of their toddler dancing to a Prince song on YouTube.  Universal, who owns the rights to Prince’s “Let’s Get Crazy,” filed a takedown notice with YouTube – who proceeded to take the video down (as a side note, this seems to be the standard procedure: act first and ask questions later).  The poster then filed a counter notice and six weeks later YouTube reposted the video.

The article is getting press mainly for one reason: the Electronic Frontier Foundation (EFF) is suing Universal for $400,000 “a remedy for false take-down notices.”

Is this an exorbitant amount?  Yes.  Is it based on reality, or billed hours, or amount of work required?  Probably not.  Is it any more ridiculous than RIAA damage claims for downloaded songs?  No.  The going rate is $80,000 per song, by the way.  But that’s not what’s important here.

What is important is how egregious the claims are in this case by Universal.  I mean – really.  Please take 29 seconds to see what we’re talking about here:

There are a two major things that make Universal’s takedown notice so asinine:

  1. The length of the clip is only 29 seconds, something that clearly could fall under Fair Use.  Hell, I can get a 30 second, hi-res sample of the song from Amazon- click here to get yours.
  2. Between the Mom, the toddler, and a young Mario Andretti doing laps, you can barely hear the music, much less make out the song.

Why on Earth would Universal decide to go after this video?  Clearly this woman is working hard to raise another generation of Prince fans who will continue to buy albums, attend concerts, and generally make money for Universal Music.

What really scares me about this takedown notice is that in addition to the shaky ground Universal originally filed on is YouTube’s blind acquiescence to corporate direction.  Don’t people review these notices for validity?  If we enter a phase where any hint of impropriety (or DMCA violations) result in the automatic removal, then we face a very grave danger. Good-bye mashups!

I can understand the enforcement arm of the DMCA, and even the motivations behind it, but I would urge that these things be used with great restraint and care, not abandon.  For everyone’s sake, we must adopt an attitude of verification and validation in this arena.  If we cannot, we will stifle not only many great creative works, but likely some very needed voices along the way.

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One thought on “Fair Use and Abuse

  1. It reminds me of Xerox getting puffy when somebody uses the term “Xerox” as a verb. To “Xerox” means to make copies. One would think they would encourage such usage so when somebody is looking to buy a copier to “Xerox” stuff, they’d buy a Xerox because that’s all they hear.

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