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In the nation's first such ruling, a federal judge on Wednesday said copyright owners must consider "fair use" of their works before sending takedown notices to online video-sharing sites.



..."Even if Universal is correct that fair use only excuses infringement, the fact remains that fair use is a lawful use of a copyright," U.S. District Judge Jeremy Fogel ruled. "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, its agent, or the law,' the owner must evaluate whether the material makes fair use of the copyright."



Fogel added that an "allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim."

Another of those rare bits of good news Background: "fair use" of a small portion of copyrighted material, for education, journalism, criticism, or satire, has always been permitted under copyright law. The truly vile Digital Millenium Copyright Act, thanks to heavy lobbying, tilted the playing field far in the direction of copyright owners, by allowing them to demand that material be removed from the Internet on a mere allegation of infringement. As a vain measure to prevent this power from being misused, the DMCA allowed legal recourse if the "takedown" notice involved misrepresentation of the infringement. Up to now, DMCA "misrepresentation" has been prosecuted about as often as false allegations of child abuse during divorce proceedings (i.e., approximately never). Now Judge Fogel has taken some of that advantage away from Big Media, by ruling that falsely claiming a fair use is "infringement" is, in fact, misrepresentation.A salute to the Electronic Frontier Foundation for winning this ruling!