“Fair use” is often touted as the balancing force that prevents copyright from totaling eclipsing the rights of free expression. In theory, this is true. Unfortunately, in practice this theoretical force has often failed to effectively serve its purpose. That is, perhaps, until now.
The reason why fair use has generally failed to effectively balance the rights of free expression with those of copyright owners is because it has always been viewed as an affirmative defense. Without at least a letter from a copyright owner threatening litigation, fair users have found themselves without standing in federal court, making it very difficult for them to affirmatively assert their rights to fair use. Even if a threat letter created sufficient standing for the fair user, the copyright owner has generally had the ability to moot the case at any point by issuing a covenant not to sue. And regardless of the outcome, fair users have almost always been forced to pay their own attorney’s fees. As a result, fair users have generally been unable to establish any precedent for their fair uses and copyright owners have been able to indiscriminately issue takedown notices (or cease and desist orders), understanding that most individuals would rather comply than pay the litigation costs.
Well, thanks to the recent federal district court decision in Online Policy Group v. Diebold, this may all be changing. As Fred von Lohmann points out, the Diebold decision has shaken up this practice by enabling ISPs and online publishers to assert affirmative claims against copyright owners who misuse the DMCA’s “notice and takedown” provision and attempt to censor non-infringing (fair) uses.
The case, a very interesting one, arose over a controversy surrounding online voting machines. I won’t relay the details (b/c you can look them up if you like), but the bottom line is that Diebold, a manufacturer of these machines, attempted to take advantage of the DMCA’s “notice and takedown provision” (codified at 17 U.S.C. §512) by issuing several such notices in order to prevent the dissemination of embarrassing, but not infringing, material. While most of the recipients complied (likely for reasons listed above), two did not. Rather, these two parties chose to file their own causes of action against Diebold under the previously obscure §512(f) of the Copyright Act. §512(f), a provision aimed at guarding against improper censoring by copyright owners, provides fair users on the internet with a cause of action for damages, costs and attorney’s fees for any injury caused by a knowing material misrepresentation that an item is infringing. As the first reported case to apply this provision, Diebold found in favor of the fair users, establishing that copyright owners who recklessly and inappropriately attempt to assert their copyrights will be held liable.
Although the Diebold case is only a district court decision at this point, the effects of its outcome on the landscape of copyright could be very significant. If nothing else, the decision has drawn more attention to the potentially powerful fair use weapon found in §512(f). Not only can we expect to see more fair users applying this provision to affirmatively assert their own rights and establish pro-fair use precedents, but perhaps more importantly, we should see a dramatic increase in the level of discretion exercised by copyright owners issuing takedown notices to ISPs and online publishers.
This decision represents a necessary, and long overdue, revelation for copyright. Previously, fair use could be more aptly described as a theoretical defense justifying the existence of copyright, rather than a right protecting free expression. By putting some actual teeth behind fair use and allowing fair users to get offensive, §512(f) has made fair use an active part of the law and allowed it to serve the balancing purpose for which it was originally intended. Although the true impact of this change is yet to be shown, it is undoubtedly a step in the right direction.
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