Before sending a DMCA takedown notice, one must consider whether the objectionable material constitutes fair use

I wrote recently that Universal was resting its case on a "weak reed" in arguing that it need not consider whether the use of its copyrighted materials is fair use before sending a DMCA takedown notice. The case, of course, involves the YouTube video of a baby dancing for 29 seconds to Prince's "Let's Go Crazy." US Judge Jeremy Fogel agrees: he ruled 2 days ago that content holders must consider the fair use premise before sending takedown notices to video sites. In his decision (pdf), Judge Fogel writes:

[I]n 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. 17 U.S.C. § 512(c)(3)(A)(v). An allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim pursuant to Section 512(f) of the DMCA. Such an
interpretation of the DMCA furthers both the purposes of the DMCA itself and copyright law in general. In enacting the DMCA, Congress noted that the “provisions in the bill balance the need for rapid response to potential infringement with the end-users [sic] legitimate interests in not having material removed without recourse.” Sen. Rep. No. 105-190 at 21 (1998).

Lawyers' work needs to be effective, not necessarily original

I wrote recently that legal writing is a quintessentially collaborative enterprise. That in part is why I think copyright is not an issue with respect to legal documents. A more important reason legal documents are not accorded copyright protection is that what matters with respect to a legal document is its effectiveness, not its originality. If a lawyer could copy an existing document that would do an as effective a job as it could for his client, he would be violating his professional code of ethics not to copy it. It thus boggles my mind when people write seriously that legal documents that duplicate others might constitute copyright violations.

It’s simple reality (and good business): lawyers and judges cut and paste from one another’s documents every day, and it would be absurd to impose a regime of copyright designed to promote original creativity if it undercut a legal regime designed to promote effective representation. Similarly, it is absurd to accuse lawyers of “plagiarism” in the documents they produce as lawyers. There have been cases which have spoken in terms of lawyer plagiarism, but they all can be better understood as fraud (charging clients for research that was nothing but the copying of pre-existing work) or malpractice (excessive copying that produces a document that bears little relationship to what the specific representation demands, as opposed to effective cutting and pasting of pre-existing work into newly written work) than as plagiarism.

Plagiarism is passing off someone else’s work as your own. But, again, in legal practice (as opposed to legal scholarship or law school work), the point of the work is its effectiveness, not its source or its originality.

In other words, all you students of mine, plagiarism in school is not allowed. It is an unethical act that can and will result in expulsion and disqualification from the practice of law. But let’s not confuse contexts: some contexts, specifically academic practices, produce in their audiences the expectation of originality; in others, specifically legal practice, originality can be effective, but effectiveness is the bottom line.