Tag Archives: fair use

Buffy Versus Edward – War on Cited Remix Video

Buffy Versus Edward – War on Cited Remix Video (Jan. 9, 2013) The acclaimed remix video “Buffy Versus Edward”, which critiques gender politics in the “Twilight” movies, was removed from YouTube as a copyright violation of Lionsgate’s movies – despite Lionsgate’s admission just the previous month that the video was a fair use.  See video creator Jonathan McIntosh’s account of the takedown, “Buffy vs Edward Remix Unfairly Removed by Lionsgate” (Jan. 9, 2013).

Already receiving significant attention, this particular takedown incident will no doubt be resolved quickly – Lionsgate conceded the fair use in December, and it is likely that this current takedown is more of an administrative problem than anything else.  But it illustrates the difficulty that artists and critics face engaging with an increasingly automated and algorithmically-based copyright enforcement system.  When YouTube’s ContentID system automatically flags content for takedown or other copyright-based actions based on its algorithmic analyses, copyright loses the critical checks and balances that let it co-exist peacefully with the First Amendment.

Ironically, “Buffy vs. Edward” was shown to, and cited by, the Copyright Office in its most recent DMCA 1201 anticircumvention rulemaking, as the sort of vital work that merited an exemption to the circumvention restrictions.  If only we could get an exemption from automated copyright control.

Update: January 10, 2013 – Lionsgate caved in the face of significant Internet protest, and “Buffy Versus Edward” has been re-posted.

AIME v. UCLA – order dismissing the case is out

November 26, 2012
Memo from the Scholarly Communication Office
Nov. 26, 2012 – Case dismissed with prejudice.

The court finally issued its order dismissing the case in the AIME v. UCLA case.  (The second amended complaint, in case you’re counting.)  In short, it was another big victory for libraries.  The court affirmed all its earlier reasoning, and deepened its reasoning in a few key areas.  

Here’s a quick summary — more discussion will be out on all the usual places in the near future, I’m sure.

Sovereign & Qualified Immunity Defenses

  •  – All claims against Regents and claims seeking damages against individual defendants in their official capacity were dismissed because of sovereign immunity.
  •  – The officials were also protected by sovereign immunity for their supervisory activities.   
  •  – The officials also had qualified immunity because the actions taken were not clearly copyright infringement; where there is at least some reasonable ambiguity around fair use, one could reasonably believe the action is fair use, and not copyright infringement.  “The Court finds that a reasonable person would not have known that the alleged conduct violated any clearly established rights pursuant to copyright law because it is ambiguous whether the use was fair use under copyright law.”   More on that below.

Associational Standing

  • – The earlier holding that AIME does not have associational standing still applies.  

interpreting the License

  •  – The earlier holdings on interpreting the license language still apply — the court had said the activity looked like a “performance” not a “distribution”.  However, the court also examined the “distribution” claim, and made a couple of key holdings:  (1) The streamed copy on the end-user’s machine is not “fixed” and does not therefore constitute a “distribution”.  (2) The licensing agreement language prohibiting broadcast or transmission over an “open or Internet system” did not clearly preclude the closed intranet system.  Conflict between the marketing brochure and the licensing language created ambiguity which could be exploited by the library.

DMCA Anti-Circumvention

  •  – Very nice interpretation of the DMCA anti-circumvention:  Because UCLA had lawful access to the content of the DVD, their circumvention was okay.   Oddly, the Court didn’t look to the DMCA anti-circumvention exemptions.

Fair Use

  • – Intermediate copying (to put the files on the streaming server) was “incidental fair use”.
  • – The streaming activities themselves were also analyzed for fair use, in the context of the officials’ qualified immunity.  Thus, the Court did not fully assess whether the streaming itself were definitively fair use; only whether they were plausibly fair use.  The Court found only that there was at least a strong argument about fair use, and so the officials were not liable for copyright infringement.  It is clear, however, that this Court felt the activities were fair use.
    • The court found that the purpose and nature favored fair use — no discussion at all.  
    • The second factor — the type of work — was neutral because, although these were creative works, they were used in an “informational and educational context”.  
    • The third factor was “slightly” against a finding of fair use because the entire work was streamed:  The “time shifting” argument was “compelling” and tipped this toward only weighing “slightly” against fair use.  
    • The fourth factor weighed in FAVOR of fair use because someone watching the streaming DVD in a classroom has no effect on their likelihood of buying.  

    Overall, this is a very helpful analysis from the perspective of libraries.

Non-Copyright Claims

  •  – The various state common law claims were preempted by federal copyright claims.

The full opinion can be read at http://www.scribd.com/doc/114021241/UCLA-dismissedWithPrej-pdf or at http://library.umass.edu/assets/caseslaw/AIME-v-UCLA-CDCal-20121120.pdf .

(The Oct. 3, 2011 decision dismissing without prejudice is also available at the UMass Library website at http://library.umass.edu/assets/caseslaw/AIME-v-UCLA-CDCal-20111003.pdf.)

HathiTrust Case Dismissed in Favorable Decision for Libraries

News : HathiTrust Case Dismissed in Favorable Decision for Libraries.

Memo, Oct. 10, 2012

Libraries received great news on the HathiTrust case, which was dismissed by the court.  The final line of the judgment read: “The Clerk of the Court is instructed to … close the case, and remove it from my docket.” 

Here is a very quick analysis from a first reading.  More to come in the next few days from a lot of sources, I’m sure!

Judge Baer was completely dismissive of plaintiffs’ arguments that Section 108 precludes library reliance of Section 107.  Nobody, I think, was seriously worried about that claim, but it was nice to have it so summarily dismissed. 

On fair use, the court found that at least two of the HathiTrust uses are transformative (full-text searching; disability access), which was great and important for the rest of the analysis.  On the fourth factor, the court was not persuaded by plaintiffs’ arguments: Copyright holders cannot preempt a transformative market.  The Court was persuaded by defendants’ arguments that the prohibitive cost of acquiring licenses for all the works would prevent the formation of the (preservation, indexing, accessible) market to begin with.

Looking at the totality of the fair use factors, the court found that the underlying purposes of copyright law to promote the Progress of Science would be best served by allowing the uses:  

“Although I recognize that the facts here may on some levels be without precedent, I am convinced that they fall safely within the protection of fair use such that there is no genuine issue of material fact. I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ MDP and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the ADA.”

This is strong language, and a clear win for libraries and their supporters.

One final note.  The Court was very influenced by the amicus briefs filed by library organizations and the digital humanities researchers; they were cited multiple times.  It is gratifying to see the advocacy of the library community paying off so handsomely.