Strong copyright system supporters have always tried to push aside fair use. Sometimes they pretend it doesn't actually exist. Sometimes, they claim that it stifles creativity. However, in the last few years, they've pretty much aligned their talking points on fair use. You'll hear it repeated again and again: fair use is "just a defense, not a right." This is a bit of semantics that basically tries to minimize what fair use represents and what it's designed to allow. The argument, effectively, is that there's no "right" to fair use, and there's no clear cut meaning for fair use. Instead, it can and should only be brought up as a defense in court. In other words, fair use does not exist until a court says it exists.

This is misleading and not entirely correct. The reason fair use is allowed as a defense is because there is a right to make use of certain types of content in certain types of ways that constitute "fair use" without first needing to receive permission from the copyright holder. But, it was still this argument that Universal Music recently used to defend itself against a lawsuit from the EFF, concerning the now infamous 29-second video of a little kid dancing, with some music from Prince playing in the background. Everyone now agrees that this video was fair use. Universal Music let the video go back online and did not sue. The DMCA has a clause that allows damages to be sought against a falsely filed takedown notice -- which was basically designed to punish those who send a DMCA takedown claiming copyright over something for which they do not actually hold the copyright. In this case, the EFF claims that since this is obvious fair use, then the DMCA notice was falsely filed. Universal, on the other hand, asked the court to dismiss the case, saying it need not consider fair use when filing a DMCA takedown notice -- mainly because fair use is just a defense, not a right.

The judge handed the EFF something of a victory, though, allowing the case to move forward and noting that copyright owners should consider fair use before sending out takedown notices. To be honest, I'm a bit surprised by the decision. While I agree that it makes sense, it wasn't at all clear that the law actually meant for fair use to be taken into account. In fact, I rather doubt that this sort of scenario was even considered by those who wrote and debated the DMCA. Universal will likely appeal on this point, and so we're pretty far from establishing definitively if fair use needs to be taken into account. However, if this ruling stands, the claim that "fair use is a defense, not a right" loses a lot of its bite. The court effectively said the opposite:

Even if Universal is correct that fair use only excuses infringement, the fact remains that fair use is a lawful use of a copyright. Accordingly, in order for a copyright owner to proceed under the DMCA with 'a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,' the owner must evaluate whether the material makes fair use of the copyright.

The judge also noted that it wasn't any sort of onerous burden to expect the copyright holder to make a fair use determination, since it has to review the content to make sure it's infringing in the first place:

Undoubtedly, some evaluations of fair use will be more complicated than others. But in the majority of cases, a consideration of fair use prior to issuing a takedown notice will not be so complicated as to jeopardize a copyright owner's ability to respond rapidly to potential infringements. The DMCA already requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice; indeed, it would be impossible to meet any of the requirements of Section 512(c) without doing so. A consideration of the applicability of the fair use doctrine simply is part of that initial review.

All in all, this is a definite win for supporters of fair use -- and a definite loss for those who trot out the "defense, not a right" line. As for the rest of this particular case, though, the judge indicated that the EFF may have a difficult time winning, noting that even if the copyright holder takes fair use into account, the specifics would have to be pretty extreme to then decide that it used "bad faith" in sending the takedown. In other words, the judge is saying that Universal should take fair use into account, but that doesn't mean that sending the takedown was done in bad faith.

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We've covered the concept of SLAPP (Strategic Lawsuit Against Public Participation) suits plenty of times before. These are bogus lawsuits filed to try to bully a critic into shutting up. In one such case, involving an incredibly broad subpoena against a librarian blogger compiling information on the potential link between mercury and autism, a magistrate judge has seriously smacked down the lawyer who filed the subpoena. The blogger had merely published on her blog information about the fees the lawyer in question had received. In response, the lawyer subpoenaed a ridiculous amount of information from her: "all documents pertaining to the setup, financing, running, research, maintaining" of the blog, "including communications with representatives of the federal government, the pharmaceutical industry, advocacy groups, non-governmental organizations, political action groups, profit or non-profit entities, journals, editorial boards, scientific boards, academic boards, medical licensing boards, any 'religious groups (Muslim or otherwise), or individuals with religious affiliations,' and any other 'concerned individuals.'"

The judge quashed the subpoena quickly, but has now hit back really hard on the lawyer, Clifford Shoemaker, for filing it in the first place:

Shoemaker has not offered a shred of evidence to support his speculations. He has, he says, had his suspicions aroused because she has so much information. Clearly he is unfamiliar with the extent of the information which a highly-competent librarian like Ms. Seidel can, and did, accumulate. If Shoemaker wanted to know if Ms. Seidel was in part supported by or provided information by Bayer, he could have inquired of Bayer or limited the Seidel subpoena to that information. Instead he issued the subpoena calling for production of documents and a deposition on the day before he stipulated to dismiss the underlying suit with prejudice. His failure to withdraw the subpoena when he clearly knew that suit was over is telling about his motives. His efforts to vilify and demean Ms. Seidel are unwarranted and unseemly....

I find that Clifford Shoemaker violated Fed. R. Civ. P. 11(b)(1) and Rule 45(c)(1).... The 11(b)(1) violation may also violate Virginia's Rules of Professional Conduct .... Clifford J. Shoemaker’s action is an abuse of legal process, a waste of judicial resources and an unnecessary waste of the time and expense to the purported deponent.

The Clerk of Court is directed to forward a certified copy of this order, the motion to quash, the show cause order, and the response of Shoemaker and Seidel to the appropriate professional conduct committee of the Virginia State Bar in order that it may be made aware of Clifford J. Shoemaker's conduct and so that those authorities may take whatever action they deem appropriate.

As a sanction from this court, Clifford J. Shoemaker is ordered to attend within three months, a continuing legal education program on ethics and on the discovery rules in the Federal Rules of Civil Procedure. He is ordered to file a certification of completion of the programs.

Now that's a smackdown.

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Could tiny carbon cages store hydrogen for a hydrogen economy? Tiny carbon capsules called buckyballs are strong enough to hold volumes of hydrogen nearly as dense as those found at the center of Jupiter. Using a computer model, materials scientists found some buckyballs were capable of holding hydrogen volumes so dense as to be almost metallic.