Takedown 'victims' must wait for YouTube decision

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Takedown 'victims' must wait for YouTube decision

Wed Jun 17, 2009 @ 01:49AM PST

By Eriq Gardner

Savage4883300e553cc49d38834-800wi We've written about the legal strategy dismissively known as "Send takedown request first, ask questions about the merits later."

The tactic has been irksome to many who have uploaded content onto YouTube only to see it taken down after someone raises a copyright concern. Just ask former Presidential candidate John McCain.

Last year, some folks in the legal community tried to organize a revolt. A woman named Stephanie Lenz sued Universal Music for damages after the company sent a takedown notice to YouTube when Lenz' video incorporated a Prince song, and a judge ruled that "fair use" should be taken into account before sending DMCA notices.

But there's one big problem here: Litigation is time-consuming and expensive, and in the meantime, the video is off YouTube.

One media company is trying to make things easier for takedown "victims." Last year, Brave New Films sued conservative radio talk-show host Michael Savage and Talk Radio Network after they sent a takedown notice to YouTube over a video called "Michael Savage Hates Muslims," which contains an audio excerpt of the "Savage Nation" program.

In a California District Court late last week, Judge Susan Illston had to decide whether to grant partial summary judgement for Brave New Films. Had she done so, it would have been an enormous victory for anybody with a beef against a copyright holder who makes a takedown claim. Alas, Judge Illston has decided not to go that far, ruling that disputed facts amounted to an "actual controversy" that would need redress at trial. Here's her decision.

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The Hollywood Reporter
The Hollywood Reporter, Esq. blog focuses on how the entertainment and media industries are impacted and influenced by the law. It is edited by Matthew Belloni with contributions from veteran legal reporter Eriq Gardner and others. Before joining The Hollywood Reporter, Belloni was a lawyer at an entertainment litigation firm in Los Angeles. He writes a column for THR devoted to entertainment law. Gardner is a New York-based writer and legal journalist. Send tips or comments to Matthew.Belloni@thr.com

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