Free and Fair use (Section 106/106A) DMCA

[Strongbadia]

I realize that this falls under both cyberlaw and copyright, so I am not certain where to post this. I feel this is more of a copyright issue than it is a cyber one.

My question is regarding the often misunderstood Free and Fair use (Sections 106 and 106A) and in relation to DMCA.

What exactly can be said to be covered under the "commentary" and "criticism" sections? For example, anyone can take TV and Movie footage rather easily and upload it to various websites such as You Tube and insert their commentary and review of a particular film, TV show, or even video game. How can one be certain that the review they upload is covered under this section? And, is it covered?

Do certain websites/companies have permission from Film, Television and Video game companies in order to upload these things?

Why is it a company can file a DMCA if you upload a video and have it removed and the citizen really has no recourse to fight this? I realize that companies have be misusing DMCA and groups like EFF dot org are working to fight for free speech.

The other part of this is that sites such as You Tube, Revver, and BlipTV seem to have varying rules on what they deem acceptable for revenue under this as well. You Tube seems to be the strictest with this. Since I am in their partner program I get to share in the revenue I make off of my videos. In fact, You Tube contacted me and asked me to join based on what I was uploading. Oddly enough, hardly any of those videos can have ads run on them because they want me to confirm my rights to use the portions of the clips I have commentary on. Blip TV has no problems with anything I have submitted at all thus far.

Since they are a private companies, do they have the right to discriminate when it comes to them allowing Google ads to run on my videos? I see other people who have similar videos but they have ads running on them. These people may have permission, but I have no way of knowing this.

If commentary and review falls under free and fair use, then why would anyone need permission? When monetary gains are concerned is that when free and fair use ends?

Honestly, I would love to have representation for this but it is my understanding copyright lawyers can be costly. I am not unwilling to pay, I just need to understand everything completely without needing to plunk down a retainer. (Of course, that depends on the cost as well)

I really need some assistance with this so I can understand.

 

[Michael Wechsler]

Like many things, the threat of a lawsuit is enough to compel people not to want to do business with you. The law itself isn't what creates the reality at times.

"Fair use" is a judgment call. Every use is different and is only under the exception if a judge confirms that is the case. There are some broad safe harbors, e.g. educational use in an established university, but even those aren't defined with specificity, just with guidelines. Let's say that no copyright owner would bring a case if there wasn't a good reason for a court to find (1) no fair use exception applies and (2) there are substantial damages. That said, a host may not want to get into an argument of what is and what isn't fair usage.

Bloggers don't necessarily equate to "journalists." Just because every Joe Shmo feels a need to share with the world their hourly thoughts on Blogger does not make him a journalist. There are some court findings that define what these exceptions are in real life.

The DMCA does permit the citizen to fight a takedown notice - it's called a counternotice. I'm going to have a FAQ up shortly about this procedure. The issue is more that the host doesn't care - if Viacom says they want video #434 taken down, the host may not take the word of user "shlemiel" that the video is owned by him and not by Viacom. If it's not Viacom but another random user claiming the video is his, the site owner contacts the web site owner about the content and gives him/her the opportunity to provide a counter notice challenging the takedown request. Make sense?