DMCA Takedown May Require Fair Use Analysis

A U.S. district court judge ruled that before issuing a Digital Millennium Copyright Act takedown notice, a copyright owner must consider whether a site was engaged in "fair use" of the material. Copyright owners, including writers, use the takedown notices when a site uses their material without permission. Having to consider whether the site owner could reasonably invoke fair use is new, but I'd strongly suggest that writers trying to use the DMCA go through an analysis and even add to the takedown notices that they had done so. Although the court ruling doesn't have the weight of statutory law, it is a precedent, and courts pay attention to such things.

To perform a fair use analysis, you have to consider the factors that the copyright law itself offers:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes


2. the nature of the copyrighted work


3. the amount and substantiality of the portion used in relation to the copyrighted
   work as a whole


4. the effect of the use upon the potential market for or value of the copyrighted
   work

I think you'd have to reasonably construe each of these; there's no shortcut you can take to automatically get to where you want to go. As I often say, I'm not a lawyer, but here's how I'd construe some situations:

• Someone reposts an entire blog posting of yours. You'd think that would not be fair use because it used the whole entry, but considering fair use is not so easy. If you just wrote a paragraph or two, would it be unreasonable to post the whole thing, as it was so short to begin with? If the person who did it was running a site that wasn't getting advertising, then it might be fair use. If the site was simply collecting entries from many places automatically to provide an advertising platform (this is fairly common on the web), then maybe not.


• A news site reproduces something short of yours. On one hand, it's probably a commercial use. On the other, it's also educational. A number of news organizations, like Associated Press, do go after uses of their material, so if it was such an organization, I'd say that their own approach would mean that they had to consider themselves out of fair use territory. That brings in the notion of intent. Did someone sincerely believe that they were engaged in fair use? If so, then you may have a problem, particularly as the person can dispute your claim and force you to go to court under the DMCA. The smart approach might be to first send the site owner a pleasant note first, asking them to take something down, and then issue a DMCA notification if you didn't get cooperation.


• Some "fan" posts a big chunk of something that you've written. Is there a discussion of it or some analysis? If there is, then perhaps it could be considered fair use because it is educational in nature. If not, then you have to decide whether issuing a takedown notice will just aggravate a situation. It might make more sense to point out to the person that such postings are considered copyright infringement, but offer them a license for this particular use if a) they provide a link to your site and b) they promise that in the future they'll ask permission of you or any other writer.


• A business posts your article in a "news" area clearly used to add to the value it brings its customers. I'd say that's clearly a commercial use, but depending on the size of the organization might still send a note to them first to see if they would voluntarily take it down.

It's not the end of writers using the DMCA by any means, but we will all have to take greater care going forward and probably document the consideration in the takedown notice.