I state:
It is a responsibility1 of the plaintiff to consider
fair use
This is within the context of whether or not a plaintiff should
consider the impact of potential licensing and the apparent insistence that the
plaintiff can completely ignore whether or not the potential defendant has an
appropriate license.
You state - in my words and my
understanding:
That I'm wrong and that Fair Use is strictly considered to be
an affirmative defense - in effect saying the plaintiff has no responsibility to
consider Fair Use at all unless the defendant raises it as a
defense.
Obviously feel free to correct me if I misunderstand your
position. However, I think the following response to such a position as I have
stated is quite clear:
WRONG!!! Seriously, where did you
come up with that from?
I point to the authorings of a Judge of
Copyright Law to support my position. In Lenz Vs Universal (Case C
07-03783-MEJ) we find that Universal attempted to dismiss the case2
for the plaintiff failing to state a cause of action. In the
Judges ruling we find some interesting statements. In section III -
Discussion of the ruling we find (page 4 of the pdf, line 9):
The
DMCA requires that copyright owners provide the following information in a
takedown notice:
(v) A statement that the complaining party has a good faith
belief that use of the material in the manner complained of is not authorized
by the copyright owner, its agent, or the
law.
Bolding mine. We also find (page 4, line
25):
Thus the question in this case is whether 17 U.S.C. S
512(c)(3)(A)(v) requires a copyright owner to consider the fair use doctrine in
formulating a good faith belief that "use of the material in the manner
complained of is not authorized by the copyright owner, its agent, or the
law."
And then - a point as to why such a case is actually hard to
come by (page 5, line 15):
Whether fair use qualifies as a use
"authorized by law" in connection with a takedown notice pursuant to the DMCA
appears to be an issue of first impression. Though it has been discussed in
several other actions, no published case actually has adjudicated the merits of
the issue.
And now for the really interesting parts (page 5, line
25):
Here, the Court concludes that the plain meaning of "authorized
by law" is unambiguous. An activity or behavior "authorized by law" is one
permitted by law or not contrary to law. Though Congress did not expressly
mention the fair use doctrine in the DMCA, the Copyright Act provides explicitly
that "the fair use of a copyrighted work...is not an infringement of
copyright."
And finally, the point that drives my opinion with
regards responsibility of the Copyright Owner (page 6, line 1):
Even
if Universal is correct that fair use only excuses infringement, the fact
reamins that fair use is a lawful use of a copyright. Accordingly, in
order for a copyright owner to proceed under the DMCA with "a good faith belief
that use of the material in the manner complained of is not authorized by the
copyright owner, it's agent, or the law," the owner must evaluate whether the
material makes fair use of the copyright.
Bolding mine again
for emphasis on what I view to be the parts to pay attention to.
You
asked where I got the idea from that the Copyright Plaintiff has a
responsibility to consider Fair Use. I present Exhibit A. In the specific
instance with sending a DMCA take down notice, the plaintiff not only has an
ethical responsibility - they appear to have a very real Legal responsibility.
At least, that's what I understand the Judge has written.
Your turn -
please provide a case reference or point to the exact Law that speaks explicitly
to the position that the Copyright Plaintiff does not have a responsibility to
consider Fair Use. After all, if I'm so very wrong when my opinion is based on
the authorings of a Federal Judge, you must have a specific case in mind or
specific Law authoring you can point to in order to show the Judge erred in his
ruling.
1) Responsibility does not necessarily equate
with a Legal requirement although it can.
2) The case is not directly on
point with this one. It is the "alleged copyright infringer" who is the
plaintiff and the "alleged copyright owner" who is the defendant. In a
nutshell: the copyright owner sent a DMCA takedown notice to youtube over a 29
second clip a mother made of her son dancing to a 20 second clip of a Prince
Song.
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