Fair Use is a Right. Ignoring It Has Consequences.

EFF update
9 hours 54 minutes ago

Fair use is not just an excuse to copy—it’s a pillar of online speech protection, and disregarding it in order to lash out at a critic should have serious consequences. That’s what we told a federal court in Channel 781 News v. Waltham Community Access Corporation, our case fighting copyright abuse on behalf of citizen journalists.

Waltham Community Access Corporation (WCAC), a public access cable station in Waltham, Massachusetts, records city council meetings on video. Channel 781 News (Channel 781), a group of volunteers who report on the city council, curates clips from those recordings for its YouTube channel, along with original programming, to spark debate on issues like housing and transportation. WCAC sent a series of takedown notices under the Digital Millennium Copyright Act (DMCA), accusing Channel 781 of copyright infringement. That led to YouTube deactivating Channel 781’s channel just days before a critical municipal election. Represented by EFF and the law firm Brown Rudnick LLP, Channel 781 sued WCAC for misrepresentations in its takedown notices under an important but underutilized provision of the DMCA.

The DMCA gives copyright holders a powerful tool to take down other people’s content from platforms like YouTube. The “notice and takedown” process requires only an email, or filling out a web form, in order to accuse another user of copyright infringement and have their content taken down. And multiple notices typically lead to the target’s account being suspended, because doing so helps the platform avoid liability. There’s no court or referee involved, so anyone can bring an accusation and get a nearly instantaneous takedown.

Of course, that power invites abuse. Because filing a DMCA infringement notice is so easy, there’s a temptation to use it at the drop of a hat to take down speech that someone doesn’t like. To prevent that, before sending a takedown notice, a copyright holder has to consider whether the use they’re complaining about is a fair use. Specifically, the copyright holder needs to form a “good faith belief” that the use is not “authorized by the law,” such as through fair use.

WCAC didn’t do that. They didn’t like Channel 781 posting short clips from city council meetings recorded by WCAC as a way of educating Waltham voters about their elected officials. So WCAC fired off DMCA takedown notices at many of Channel 781’s clips that were posted on YouTube.

WCAC claims they considered fair use, because a staff member watched a video about it and discussed it internally. But WCAC ignored three of the four fair use factors. WCAC ignored that their videos had no creativity, being nothing more than records of public meetings. They ignored that the clips were short, generally including one or two officials’ comments on a single issue. They ignored that the clips caused WCAC no monetary or other harm, beyond wounded pride. And they ignored facts they already knew, and that are central to the remaining fair use factor: by excerpting and posting the clips with new titles, Channel 781 was putting its own “spin” on the material - in other words, transforming it. All of these facts support fair use.

Instead, WCAC focused only on the fact that the clips they targeted were not altered further or put into a larger program. Looking at just that one aspect of fair use isn’t enough, and changing the fair use inquiry to reach the result they wanted is hardly the way to reach a “good faith belief.”

That’s why we’re asking the court to rule that WCAC’s conduct violated the law and that they should pay damages. Copyright holders need to use the powerful DMCA takedown process with care, and when they don’t, there needs to be consequences.

Mitch Stoltz

Stand Together to Protect Democracy

EFF update
14 hours 36 minutes ago

What a year it’s been. We’ve seen technology unfortunately misused to supercharge the threats facing democracy: dystopian surveillance, attacks on encryption, and government censorship. These aren’t abstract dangers. They’re happening now, to real people, in real time.

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Christian Romero

【焦点】吉村代表面目丸つぶれ、定数削減成立は不透明　切り捨ての維新、党存亡の危機＝橋詰雅博

日本ジャーナリストクラブ（JCJ）
14 hours 48 minutes ago
　国会議員定数削減は来年の通常国会で継続審議となった。庶民が求める企業・団体献金禁止の審議を脇に追いやり突然提出した日本維新の会の削減案は、特別国会での成立を維新は主張したが、思惑が完全に外れた。自民党との連立で手柄をたてようとした吉村洋文代表は面目丸つぶれ、低迷する支持率はさらにダウンという可能性もある。　　そもそも議員定数を削減する必要があるのだろうか。現在、衆参両院の合計議員定数は７１３で、ピークの１９８０年代後半から約５０減った。１２月５日付日経新聞コラム「十字路」で..
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