[Foundation-l] Fair Use (again)

Ray Saintonge saintonge at telus.net
Mon Jan 29 20:18:15 UTC 2007

Jeffrey V. Merkey wrote:

>Ray Saintonge wrote:
>>Jeff V. Merkey wrote:
>>>We should act in good faith always. Good faith means if someone creates 
>>>a "cloud of doubt" and they are
>>>an undisputed owner of the materials in question, a good faith action 
>>>would be to remove it.
>>The biggest fly in that ointment is with establishing that they are the 
>>undisputed owner.  There are as many misconceptions about that as there 
>>are about fair use.  When that has been established it's good corporate 
>>citizenship to remove the material when they ask nicely even if we could 
>>win a court fight over fair use.
>If they cannot establish they own the rights to the materials to the 
>Foundation, then it is doubtful they will be able to
>convince a judge of this. An attorney sending a letter or posting a 
>notice asserting such claims are true is about the
>only bonafide proof there is, short of a court ruling. Attorneys are 
>bound by rules of professional conduct. Falsely asserting copyright
>ownership on behalf of a client could get them brought up on allegations 
>with their state bar. If they are disbarred, they
>cannot practice law. Lawyers are not allowed to bill their time to 
>answer bar complaints, and it could take 6-12 hours or more in
>what would have been valuable time they could bill for. If they work for 
>a law firm, bar complaints can get them in a lot of
>trouble. As such, any attorney claiming copyright on behalf of a client 
>is most probably telling the truth and has done their
>homework on the claims.
>That's how you tell. When an attorney sends a DMCA notice to the 
>foundation. At which point, the content should come down.
One of the most important requirements of a DMCA notice is the assertion 
of ownership.  This can be done by the author, his heirs or a legal 
representative; I think that we agree about that.  I'm not presuming 
that the lawyer in question is trying to make a claim that he knows to 
be false.

An honestly erroneous claim should not expose him to the penalties that 
you outline.  It's easy to imagine a situation where he has been 
approached by a client whose legal claims are not sound, but where the 
potential outcome is uncertain.  He needs to look after his client's 
concern.  The lawyer's claim is not proof of anything substantive; it's 
an opening argument.  In most (but not necessarily all) cases the 
content should indeed come down, but the ISP should at least revue the 
notice to make sure that it is valid on its surface.  I also believe 
that the notices should be made public in case any editorwants to take 
the matter further in his own name, and at his own cost.


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