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ZippyDSMlee's picture
Joined: 2006-09-30

[QUOTE]Universal: "Fair use" is still infringing

By Nate Anderson | Published: July 21, 2008 - 06:25AM CT

Stephanie Lenz's YouTube video of her tot dancing to an old Prince song was pulled down at the request of Universal last year after the music label said that the clip infringed on its copyright. Not content with simply having Universal retract its claim, Lenz and the Electronic Frontier Foundation are out to put the squeeze on Universal for issuing a bad-faith DMCA takedown. But Universal told a judge this week that, even though the clip may in fact be "fair use," it was still "infringement" and therefore the initial takedown notice was made in good faith.
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The two sides faced off in a San Francisco court before Judge Jeremy Fogel, with Universal arguing that it simply couldn't be held liable for wrongly issuing a DMCA takedown notice (if, in fact, it actually issued a DMCA takedown notice... another point at issue in the case). It did correctly identify the Prince song playing in the background, and the company does control the rights to song; therefore the claim of "infringement" was correct. QED.

According to Wired, which had a reporter at the hearing, the judge pushed Universal's lawyer to take this position as far as it could logically go. "Are you saying there cannot be a misuse of a takedown notice if the material is copyrighted?" he asked. "I don't think 'fair use' qualifies," Universal's lawyer responded.

Takedown notices make me cry

This isn't a surprising position for the company to take. In its reply to the charges against it, filed several weeks ago, Universal made clear its belief that the original takedown notice was accurate, since fair use is an "affirmative defense" that can overcome an infringement claim, not an assertion that the use didn't violate copyright.

"Plaintiff's exclusive reliance on the affirmative defense of fair use necessarily establishes that Universal’s statement that her use was infringing was true," said Universal. "For there to be a 'fair use,' there first must be an infringing use. Plaintiff’s arguments that her use could be a 'fair use' without infringing, or that Universal must be deemed to have impliedly represented that her use was not 'fair,' are contrary to the Copyright Act and controlling case law."

In one obvious sense, Universal has a good point to make on this issue. It simply can't be correct that copyright holders can be found liable for bad faith takedown notices simply because the use in question turns out to be fair in the end; as we have pointed out many times, no one knows if the use is fair until a judge actually rules.

On the other hand, decades of both common practice and case law have established some general parameters for fair use (see the recent American University project on fair use in video work for an example). No one wants rightsholders to sue over uses that are 99.5 percent likely to be found "fair" in a court, as this would clearly favor companies with deep pockets over everyone else (and is the reason behind laws like California's anti-SLAPP statute).For these reasons, the judge's ruling here will be a compelling read.

No doubt the whole case feels particularly satisfying for the EFF, which has a music label playing defense in court. But Universal makes clear just how it feels about the whole ordeal: "Plaintiff’s inability to state a claim is not surprising. She has no claim, and never came close to alleging one... It is time for this case to be over."
They should be held liable for spamming and misusing DMCA take down notices.
[QUOTE]Court overturns FCC's Janet Jackson nip-slip fine

By Matthew Lasar | Published: July 21, 2008 - 01:55PM CT

In a devastating blow to the Federal Communications Commission's crackdown on "fleeting" expletives and images, the Third Circuit Court of Appeals has struck down the agency's $550,000 fine against CBS for broadcasting Janet Jackson's famous quickie breast exposure scene from the halftime show of the 2004 Super Bowl. The court not only calls the new policy "arbitrary and capricious," but held that CBS was not responsible for the actions of the dancers: Jackson and Justin Timberlake. "Both performers were acting as independent contractors for the limited purpose of providing entertainment services for one isolated, brief program," the justices ruled.

In the end, the court ruled that CBS did its best to control Jackson and Timberlake's performance within the context of its independent contractor relationship with the two performers. "When a broadcaster endeavors to exercise proper control, but ultimately fails, to prevent unscripted indecency, it will not have acted with scienter [knowledge of deliberate wrongdoing]," the justices argued, "if its actions were negligent rather than reckless."

Today's ruling represents yet another defeat for the FCC's new policy of punishing broadcasters for "fleeting" expletives and images. Last summer the Second Circuit Court of Appeals overturned the agency's sanctions against Fox Television affiliates for broadcasts of Cher and Nicole Richie saying "****" and "****" during the 2002 and 2003 Billboard Music Awards. The FCC has appealed that decision to the United States Supreme Court, which will hear the case in the fall.
9/16ths of a second

Over half a million people filed complaints with the FCC following Janet Jackson's famous breast exposure Super Bowl half time scene. But the Third Circuit's skepticism of the FCC's fine is obvious from the getgo. The Opinion notes CBS's research indicating that over 85 percent of those complaints came from forms produced by activist groups. Many of the protests were filed in duplicate, "with some individual complaints appearing in the record up to 37 times,” CBS asserted.

And very early in the court's 102-page ruling, the justices also note that in the last three decades since the Supreme Court's Pacifica vs. FCC ruling, the agency has showed a great deal of restraint in punishing broadcasters. "Throughout this period, the Commission consistently explained that isolated or fleeting material did not fall within the scope of actionable indecency," the court observed, with said policy in effect up to and including the Jackson breast-exposure scene, which the Opinion's very first paragraph notes lasted "nine-sixteenths" of a second.

"Like any agency, the FCC may change its policies without judicial second-guessing," the court declared. "But it cannot change a well-established course of action without supplying notice of, and a reasoned explanation for, its policy departure." The Second Circuit made a similar call in the Billboard cases.
Let's play masters and servants?

The Federal Communications Commission argued that the employer/employee doctrine of respondeat superior ("let the master respond") applied in the Super Bowl situation, but the court accepted CBS's assertion that it enjoyed only limited control over the Jackson/Timberlake routine. "It is undisputed that CBS’s actual control over the Halftime Show performances did not extend to all aspects of the performers’ work," the judges wrote. "The performers, not CBS, provided their own choreography and retained substantial latitude to develop the visual performances that would accompany their songs." And neither Jackson nor Timberlake actually saw themselves as CBS employees.

The FCC also complained that CBS should have set up some kind of video-delay system to guard against such incidents. But the court accepted the network's assertion that no such technology existed at the time, and noted that CBS subsequently developed such a system only in response to the outrage over the Jackson incident.

All three justices ruling in today's decision concurred on the arbitrary and capricious nature of the CBS fine, although one had some issues with the question of scienter. The FCC is holding an en banc hearing on the future of broadband today (expect a report from Ars), so it's not surprising that no statement has appeared on the agency's Web site so far.

The Parents Television Council, however, had plenty to say about the ruling. "Once again, a three-judge panel has hijacked the will of the American people—not to mention the intent of the Congress acting on behalf of the public interest—when it comes to indecent content on the public airwaves," declared Tim Winter, President of the PTC. "While we are not surprised that the legal venue hand-picked by CBS would rule in favor of the network, the court's opinion goes beyond judicial activism; it borders on judicial stupidity."

But the Center for Creative Voices in Media (CCVM) sees the decision as a victory for broadcast writers, producers, and parents. "In many cases, the very kinds of television programs that parents want their children to watch—high quality documentaries, histories, and dramas—have been impacted," by the FCC's fleeting indecency policies, CCVM says. "The Commission's 'cure' for indecent programming is proving worse than the disease. It does not serve the public interest." [/QUOTE]
the FCC needs more teeth removed......its simply unneeded anymore.....


Ah modern gaming its like modern film only the watering down of fiction and characters is replaced with shallow and watered down mechanics, gimmicks and shiny-er "people".
Incoherence is my friend and grammar my bane, which is the fulcrum of suffering I place upon others!:ZippyDSMlee

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