Courts agree with MPAA, Fair Use consideration unnecessary for DMCA take down.

Scale_of_justice_goldA digital lifetime ago, I used to co-host and co-produce a movie review show called Movies You May Have Missed. Each week we’d craft a video love letter to a film we wished had gotten more attention. We think we did our jobs well, with respect, and we were proud to stay spoiler free, assuming the film in question was “new to you”. We studied Fair Use to make sure we were operating within its bounds, and contacted lawyers who vetted our content. We loved these films, and wanted to share them with other like-minded cinema fans.

The problem? We used clips of the films in our discussion to illustrate things we liked about those films.

This meant Youtube was largely a non-starter. Every episode posted to that social network would get shot down in a hail of auto-copyright ID checks. We spent a significant amount of time fighting each one, with little support. Google’s tools for Youtubers are pretty hands off in regards to these kinds of claims. You’re guilty before you can prove yourself innocent. If you’re not already a big player and famous enough to make a lot of noise, you have little recourse to correcting those copyright strikes. We ultimately had to host episodes elsewhere just so people could see them. Even though we haven’t produced an episode in well over year, MYMHM still pulls in some small traffic from fans, last tally was over 350,000 channel views for August. On old content. None of it monetized, as most online rules for such behavior are draconian. Not only were we not allowed to profit from our hard work, even just to pay off our website hosting, we were barely free to even show people our show. The largest audiences were consistently denied us.

I continue to entertain bringing the show back some day, but our legal system has taken steps towards making that return even more unlikely.

TechDirt is reporting on a strange court case involving two incredibly obnoxious bloggers flinging abusive and stifling DMCA take down requests at each other. In previous cases regarding these types of filings, the MPAA has argued that Congress did not intend for filers to have to consider Fair Use when filing infringement take down requests. This would seem to be the whole point of Fair Use if you examine the laws surrounding our rights in interacting with copyrighted materials, unfortunately the courts reviewing this online squabble have sided with the MPAA’s arguments. This case between two people having an internet cat fight has now opened the doors for even more abuse of a vaguely defined set of protections for major media companies.

And this is why we can’t have nice things.

Techdirt also has a transcript of the court’s decision in PDF.

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