Copyright: DMCA vs Fair Use

The DMCA (Digital Millenium Copyright Act) has created a significant copyright law divide between analog and digital media. For analog works, traditional copyright principles such as “fair use” apply. For digital media, not so much, because the DMCA shifts the burden of proof.

Plays, for example, are an analog medium. An excellent way to understand the differences is to analyze a modern play, and see what elements might cause problems for digital content.

Traditional (Analog) Copyright Law:

The four-person play “39 steps” humorously interprets the classic 1935 Hitchcock film. Appropriately enough for our topic, the plot involves intrigue, secrets, and a falsely accused innocent man. This play is also an excellent example of how, at least for analog media, creatives who understand traditional copyright law can use a mix of public domain and copyrighted source material in their creative works.

The 1935 Hitchcock film has a US copyright that expires in 2026. The film had a large cast and budget, was a big success, and had dramatic elements that Hitchcock reused in later films.

By contrast, 39 steps (the play) was written in 1995 (later revised in 2005). It also has been very successful, first as a 9-year run in London, and since 2008, in the US.

What about copyright permission? The playrights wrote the play so that a license wasn’t needed. They cleverly exploited various permissive areas of traditional copyright law, including copyright term limits and fair use.

    • The movie used a now copyright-expired 1915 novel by John Buchan.
    • The play uses many fair use copyright principles, including:
        • Parody – the play pokes gentle fun at Hitchcock’s works
        • Transformation – the play uses clever tricks to reimagine the movie.
        • Amount of material taken – Only short Hitchcock film references
        • Trivial impact on the potential market for the original 1935 film

Traditional (analog) copyright laws acts to protect the interests of content creators. It also serves, through fair use, to allow others to create new works.

DMCA (Digital) Copyright Law: 

Sadly, for digital media, copyright law presently suffers from regulatory capture. Specifically, the Digital Millennium Copyright Act (DMCA). Although the DMCA states that it “shall not affect” fair use, this is not the case. In reality, the DMCA has specific “guilty until proven innocent features that have significantly damaged fair use. The “gotcha” is that legally, fair use does not mean “no” copyright infringement. Instead, traditionally, fair use is only a “defense” against an accusation of copyright infringement. So, under traditional law, all fair use material is still infringing; it is just OK infringement.

Takedown notices:

The DMCA requires content servers, such as YouTube, to almost immediately remove the content in response to a takedown notice. Here, an agent representing a copyright holder files a takedown notice asserting that: the content “infringes”, and was unauthorized by the owner or by the law. There are no perjury penalties regarding the content assertions. (Perjury does apply if there was no authorization.)

Think that “or by the law” includes fair use? Maybe, but to what extent? Remember that traditionally, all fair use material still infringes. Congress has not established any explicit, fair use rules, and it may take a Federal court to decide if the fair use is OK. Courts can be prohibitively expensive and time-consuming. So, a takedown notice that fails to consider, or only superficially addresses, fair use is not committing perjury.  (No DMCA penalties if they did not tell the truth.)

The 39 steps play would not work under the DMCA:

The 39 steps play, discussed above, shows the difference between analog and digital copyright law. The DMCA switches the burden of proof and undermines centuries of fair use law. It gives us intrigue, secrets, and innocent persons accused of dastardly deeds.

All is not lost, however. Some recent developments include:

    • In an influential 2015 ruling, the Federal 9th district (California) court held that 17 USC. 107 requires at least a limited DMCA fair use analysis.  So copyright holders need to consider fair use at least or pretend they did.
    • Due to the court decision, fair use is now a legitimate response to a takedown notice. For example, YouTube has a copyright counter-notification process to respond to takedown notices. YouTube states that it may consider, at least for the US, certain types of fair use defenses. Results may vary.
    • YouTube has also recently added an “explicit trim” function that enables video uploaders to avoid takedown by quickly removing allegedly infringing sections.

Be careful:

The bottom line is that digital content creatives need to be cautious. Don’t just quickly read about fair use, and assume that it will automatically protect your work from takedown notices. It won’t.

Illustration: The 39 Steps movie poster (copyright expired)