Off With Their Head!

Being a reasonably intelligent fella I recognize there are few absolutes other than certain death. That is especially true with rolling the dice in the American Judical system. That is something that Universal should have kept in mind –

In what Fogel said was a “case of first impression,” Universal attorney Kelly Klaus said Universal or other copyright holders are not liable for damages when somebody asserts fair use to reverse a takedown notice.

Klaus and the judge agreed that damages have been awarded when a sender of a takedown notice falsely represents copyright ownership. But in this case, Universal owns the rights to Prince’s song.

“Are you saying there cannot be a misuse of a takedown notice if the material is copyrighted?” Fogel asked Klaus.

“I don’t think ‘fair use’ qualifies,” Klaus answered.

In the preliminary the judge rules –

“Even if Universal is correct that fair use only excuses infringement, the fact remains that fair use is a lawful use of a copyright,” U.S. District Judge Jeremy Fogel ruled. “Accordingly, in order for a copyright owner to proceed under the DMCA with ‘a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,’ the owner must evaluate whether the material makes fair use of the copyright.”

Another words the judge handed the Universal lawyers their heads in their hands. The trial still has to be wound out to conclusion but the judge has suppressed the basis of Universal’s primary defense against civil penalities.

But the impact of the preliminary ready by the judge will have impacts. If upheld on appeal the landscape will change radically. No longer can a copyright holder issue roboC&D’s. They will have to consider if the use falls under the umbrella of Fiar Use. Endgame? If Universal loses, then unless it can be proven that money changed hands copyright holders will have to give any use that is Fair Use a wide berth. They will also have to spend $$ to determine if it is Fair Use not the user. [Though users would be dumb not to so structure their use to meet Fair Use provisions.]

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