Fair Use, Misrepresentations, & the DMCA

Not everything is depressing in the world of civil liberties & Internet politics. :-) I came across some tentatively good news today! We’ll see how it is applied as the case continues.

Someone actually decided to test the underused ‘misrepresentations’ section of the DMCA — the part that is supposed to limit the chilling effects of the DMCA. So far it has failed miserably to accomplish this goal, but in theory companies are liable for damages if they send cease & desist notices for things that they should know aren’t actually infringements of their copyright. So in this case a district judge sensibly ruled that companies must consider fair use before sending cease & desist letters. HOWEVER, it’s not clear whether this judge or any other will actually hold the companies accountable. The company will likely just get off by saying “oops.”

The part of Wired’s article that I found most galling though was this:
“Universal argued that copyright owners may lose the ability to respond rapidly to potential infringements if they are required to evaluate fair use prior to issuing takedown notices.” Apparently Universal believes that intimidating large numbers of innocent people is better than actually considering whether or not the cease & desist notices they send are actually legitimate.