Comment by otakucode | Hacker News Reader

Comment by otakucode | Hacker News Reader

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The problem is, in the USA at least, there is a legal right to Fair Use of copyrighted works. Analysis of Fair Use issues is not simple and is impossible to automate. Music companies have been consistently breaking the law with their claims. The law requires them to do a proper Fair Use analysis prior to lodging any complaint under the DMCA. While it might be possible for Google to automate removal of a given scrap of music from a video, and providing that as an option to the music companies as an alternative to blocking the entire video or disabling monetization might be a good idea, it leaves a few problems on the table. Music companies would still be legally obligated to perform proper Fair Use analysis on every single video they do this to. Additionally, there is no such thing as a central copyright registry that Google could use to verify that the people filing the claims have any right. Googles systems can be, and actively are, abused. It's the sort of situation that I imagine Google really dislikes, as the law in this area is basically impossible to automate. So, they will probably just automate destruction of Fair Use because the groups most likely impacted have fewer resources to fight it.

As noted elsewhere, the Content ID system is only there to make sure DMCA and Fair Use doesn't have to get involved since the only way to legally assert your use of a piece is Fair Use is to go to court, which is costly for YouTube if they're pulled into the case.

> The law requires them to do a proper Fair Use analysis prior to lodging any complaint under the DMCA.

No it doesn't

What makes you so confident? I think the current belief, as decided in Lenz was that the law requires copyright holders to consider fair use before filing a takedown notice:

"The panel held that the DCMA requires copyright holders to consider fair use before sending a takedown notification, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law."

https://law.justia.com/cases/federal/appellate-courts/ca9/13...

Have I missed some precedent that overturns this?

Lawyers are court officers and are duty bound not to advance frivolous or false claims. They can be charged with barratry for violating their oath in this regard.

Ive never understood fair use to be a right. Fair use is a weakening of right holders rights, a defense that can be used to get a case dismissed, despite copyright infringement having technically occurred.

Correct: fair use is a defense. Like "self-defense" or "coercion" are defenses in assault cases.

Fair Use is specifically an affirmative defense. Not a defense like self-defense at all. It's not a matter of 'yes I did a bad, but I had a good reason', but 'it is my right to do this, I did nothing wrong'. The other references to Lenz v Universal in this thread established this and it's been upheld in many courts.

Self defense is an affirmative defense.

The affirm part is you conceding you committed the crime, and then you argue it was justified.

Lenz didnt confirm it was an affirmative defense, they ruled the way they did despite admitting it was an affirmative defense, one that can only procedurally arise after you've been accused of a crime.

I don't know about American fair use, but Canadian fair dealing is explicitly a user's rights. From wiki:

> According to the Supreme Court of Canada, it is more than a simple defence; it is an integral part of the Copyright Act of Canada, providing balance between the rights of owners and users.

This was a traditional understanding, but the decision in Lenz is largely based on the conclusion that "fair use" is explicitly an "authorized use", and not just a defense of infringement. Universal made the essentially argument you are making, and the court soundly rejected it:

"We agree with the district court and hold that the statute unambiguously contemplates fair use as a use authorized by the law. Fair use is not just excused by the law, it is wholly authorized by the law."

In defense of this (among other arguments) they cite portions of the US code that explicitly refer to fair use as a "right":

"See also 17 U.S.C. § 108(f)(4) (“Nothing in this section in any way affects the right of fair use as provided by section 107 . . . .”"

https://cases.justia.com/federal/appellate-courts/ca9/13-161...

So while your understanding of fair use as merely a defense against infringement may be widely held, and arguably is even the historically accurate position, it doesn't reflect the way that the courts currently interpret the statutes.

Thanks. I hadnt read Lenz and understood it more to be saying its not ok to make bad faith claims you know you will lose.

Now I agree with your interpretation to an extent, however its only the 9th circuit court. Lenz is also odd in that the person claiming fair use is the plaintiff, and the suit itself is that a DMCA claim was frivolous. The video was restored after her counter-notification, and her lawsuit was later.

A DMCA taketdown request is itself not a lawsuit. So my interpretation of the ruling is not that "you cant sue someone" but that you "cant blast out DMCA notices." I read it as an anti-intimidation ruling. It is clear, that it sees fair use as authorized by law, but it also still categorizes fair use as an affirmative defense.

Ergo, fair use gives you a defacto right to not be harassed.

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