While I am pleased with this decision to allow a lawsuit against Universal to continue, we’re really not that much closer to achieving clarity about Fair Use in the 21st century.
The saga of the copyright-infringing toddler continues as a California court refused to dismiss a lawsuit claiming that Universal Music had filed an improper takedown notice under the Digital Millennium Copyright Act. The DMCA provides a mechanism for copyright holders to demand the removal of infringing material on the web, but it also allows lawsuits against those who abuse that authority. Universal claims that it has no obligation to take fair use into account before sending its takedown notices, but Judge Jeremy Fogel rejected this argument—and with it, Universal’s request to dismiss the lawsuit.
More concerning to me is the way that content owners, aka studios, are pressuring cable and satellite companies to impose use restrictions on video on demand content that effectively locks down content to a single device. Directv is doing this with their set top boxes, which don’t allow you to move content to other boxes in your own home, much less alternative devices for viewing.
The bottom line is that Fair Use is being rewritten not by the Congress or the courts but rather by content owners who are forcing their distribution partners to adhere to far more restrictive usage terms and to do it at the hardware level.
Never before in the history of technology has so much money been spent on developing a technology, DRM, who’s sole purpose it is to restrict consumer behaviors, choices, and ultimately the experience.