[Foundation-l] Fair Use (again)

Jeff V. Merkey jmerkey at wolfmountaingroup.com
Mon Jan 29 20:41:46 UTC 2007

Ray Saintonge wrote:

>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.

Attorneys do not send letters to a potential third party unless they 
have done their
homework. I would take an attorneys demands as credible in most cases with
copyright. Employment law is different as is any situation where the 
court would
have to "balance the equities" you should look hard at the situation 
since the court will
have to weigh through the rights of both parties and come up with an 
equitable solution
(like trade secret law and non-competes as a good example).

There is no balancing test for copyright infringement, its statutatory, 
and so are the
damages. In such a cut and dry case, I would tend to err on the side of 
caution. At any rate,
Brad eloquently addressed the issue and said "if this is a free 
encyclopedia, why do we have fair
use images being used -- use free ones if at all possible and make the 
issue moot."



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