On 5/19/06, sannse <sannse(a)tiscali.co.uk> wrote:
I'm speaking here as someone who works on OTRS, so
has to looks at cases
like this all the time (I'm not claiming extra authority from that, just
extra insight).
What it comes down to is that fair use is not a right, it is a defense.
Why do people keep saying this? Fair use is a defense. It's also a right.
The only way to fully show that any image is used
legitimately under
"fair use" is to go to court and win a case where you use this as your
defense.
You could also get a declaratory judgement or win a case against
someone abusing the DMCA. But yeah, you'd have to go to court,
because fair use is not black and white, it's a matter of
interpretation.
In this particular incident, a person with an
apparently legitimate
claim to the image asked us to remove the image, with the understanding
that he was willing to defend his rights and test our defense in court.
It would have been nice if he had sent in a DMCA takedown notice and
the Foundation then forwarded it to the original uploader, who would
then have the opportunity to send the Foundation a DMCA putback notice
if ey chose.
Now you may believe, and you may be right, that we
would win that
case... but it would be at a significant financial cost (and possibly
significant other costs, but lets stick with the financial for now).
That's one advantage of insisting upon a DMCA takedown notice - now
the ball is in the court of the uploader, who can choose whether or
not it's worth the financial cost to fight.
However, if anyone wants to agree to pay all legal
costs in defending
the use of this image - and it is /highly/ likely that there will be
some if this image is used - then I say go ahead! I'm sure Danny can
arrange for a contract to be drawn up with that agreed. I'm not sure of
costs in the US - but I guess a few thousand as a down-payment for
initial legal advice would be sensible too.
--sannse
I won't make any down payment, but I'd most likely be willing to sign
such a contract. Have Danny send me the details.
Anthony