Fair Use Goes on the Offensive

law.com - Article

Finally some good news on the copyright front...

A great article on fighting back against intimidation law suits. As the article points out, until recently there has been no way for defendents in such frivolous suits to recoup the financial losses associated with defending their rights against bullying by copyright lawyers. Essentially the DMC (Digital Millenium Copyright Act) has a provision which is meant to deter companies with standing armies of lawyers from abusing the "notice and takedown" provisions. Companies do this for lots of reasons... either to prevent embarrassing materials from being published (as in the Diebold case) or to prevent people from sharing non-infringing files over P2P networks. When these notice and takedown letters are issued you basically have the options to do what they say or spend a fortune on legal fees defending yourself. The company issueing the notice can simply leave you hanging with lawyer fees if you attampt to countersue by issueing a covenant not to sue... this would keep you from getting a hearing in the courts and prevent you from recouping any of your legal expenses.

Under the 512(f) someone who recieves a notice and takedown letter for material which is NOT infringing can file a countersuit and get heard in court wven if the company promises not to sue you afterall. This provision allows the recipient of such a notice to recoup damages, costs and attorney fees!!

More than anything else it's a great incentive to lawyers to take on these cases for web publishers who get threatened because they can get paid for doing the work and don't have to worry about getting hung out to dry when the notifying company issues a covenant not to sue and takes the feet out from under their case. Now they can go after them for abusing this tactic on it's own.