On 5/19/06, sannse sannse@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