Copyright: DMCA vs Fair Use

39 steps movie poster
39 Steps movie poster (copyright expired)

The DMCA (Digital Millenium Copyright Act) has created a great 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. A good way to understand the differences is to analyze a modern play, and see what elements might cause problems for digital content.

Traditional 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 a good example of how, at least for analog media, creatives who understand copyright law can use a mix of public domain and copyrighted source material in their own 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 play was written so that permission wasn’t needed. The playwrights cleverly exploited various permissive areas of copyright law, including copyright term limits and fair use.

    • The movie was based on 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

This is traditional copyright law. It acts to protect the interests of content creators. It also acts, through fair use, to allow others to create new works.

DMCA 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 certain “guilty until proven innocent” features that have greatly 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 content in response to a takedown notice. This happens when anyone representing a copyright holder asserts, in a takedown notice, 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, and it may literally take a Federal court to completely decide if the fair use is OK. This can be prohibitively expensive and time-consuming. So, a takedown notice that fails to consider, or only superficially considers, fair use is not committing perjury.  (No DMCA penalties if they did not tell the truth.)

Hence the 39 steps example. 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 hopeful developments include:

    • In an important 2015 ruling, the Federal 9th district (California) court held that 17 U.S.C. 107 requires at least a limited DMCA fair use analysis.  So copyright holders need to at least consider fair use, or at least 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.
    • YouTube has also recently filed a lawsuit against a defendant who allegedly practiced extensive DMCA takedown fraud and extortion.

But 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.