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The Public’s Responsibility for Their Own IP

Saturday, August 22nd, 2009 at 10:01 ET


I don’t often respond to a message board, article, or blog in the comment section. It’s too easy to get lost in the throng of off-topic, uninformed, or mean-spirited posts. This morning when I had a little time to kill because of work however, I came across an interesting article. Perhaps because I’m passionate about the topic, or maybe because it was such an unreasonable hour after a 12+ hour day, I decided to go for it. Not one to let 60 minutes of work go unnoticed, I thought I’d try to bring it to your attention.

The original article from techcrunch is Flickr v. Free Speech. Where Is Their Courage? I read the whole article even though I didn’t find the argument very compelling and I noticed a lack of supporting information in the places it was needed most (and maybe a few too many citations I didn’t care about because of what was lacking.)

After skimming through all the comments and reading most of what I thought where the good ones, I decided to respond to the author’s comment buried in this comment. If you aren’t interested in reading all that, just skip to my comment.

I think my argument stands for itself, but there’s one thing I’ll add. The author of the article makes a claim that

Yahoo/Flickr should have asked its attorneys if the copyright claim had any validity at all before removing the image … [who could have told] … you that this is clearly a fair use of the original Obama image, Time Magazine‚Äôs copyright and copyright around the movie.

I wish the author would have consulted a lawyer. The DMCA’s Online Copyright Infringement Liability Act (OLCILA) was specifically created to prevent Service Providers from having much incentive to make any judgment about the validity of the copyright claim. More than that (and let me reassert, as I did in my comment, that I’m not a lawyer), the concept of Fair Use and more specifically, parodies, is an affirmative defense. This means that you’re still actually violating someone’s copyright and can still be sued, but (if your affirmative defense is proven) will be able to get out of it in court. This status as an affirmative defense makes it even less likely that a company receiving a substantially sufficient DMCA take-down notice would question the take-down because they thought the content was a parody — the OLCLIA doesn’t really give them the ability to do that without jeopardizing their safe harbor.

To quote myself:

Like it or not, this is the check-and-balance that makes the situation livable. To make the system work, the public has a responsibility to hold people accountable by filing counter notices and suing for misrepresentation if necessary.

Filed under: Computer Geek

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