My colleague Sam Glaser and I have been discussing this article at Ars about take-down notices for fair use. Apparently, Universal’s practice has been to send take-down notices for all use of copyrighted material, whether or not the fair use exemption applies to the material. Universal claims that it cannot determine what use is fair and seeks to assert its rights to material, then figure out whether the use was exempt later. It does not want to be prevented from sending take-down notices just because some use may be fair.
But, Ars points out, “no one wants rightsholders to sue over uses that are 99.5 percent likely to be found ‘fair’ in a court.” In my discussion with him, Sam noted that hosting sites like YouTube have no better way to tell what content is “fair use” than Universal, and so are likely to just take down all uses of copyrighted material, whether exempted or not. This would undermine the whole purpose of fair use.
Thoughts on the issue?
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IP owners have no more business performing prior restraint of speech than does government. Therefore, all take-down notices should be banned. Let the IP owner go to court and prove infringement, and only THEN let the judge order the material to be taken down. The mere prospect of infringement does not justify violating the presumption of innocence which is what makes America America.
Similarly, the law has no business banning circumvention of “DRM” systems which impose restrictions far beyond what the content producer’s IP rights entitle him to impose. Disney has no business telling a buyer of its DVDs he can’t skip commericals.