Fair Use vs. The Western Front: It's On!

[kevyn]

Photo by Kathryn Bachen, used without permission.
From The Western Front, Monday, November 17, 2008

The LiveJournal Abuse Team has contacted me, and informed me that my LJ entry with the photo of me with the megaphone has been suspended, because of a copyright infringement complaint:

Dear user kevynjacobs,

We have received a report, properly formatted under the provisions set forth by United States law, indicating that your entry located at [http://kevynjacobs.livejournal.com/184726.html] violates the copyright of another. As such, we have suspended this entry to disable access to this material.

If you feel that this report is in error or that your use of the material falls under one of the categories permitted under copyright law, you are entitled to file a counter-notification, also under the provisions of US law; please contact us for information on how to do this. Filing a counter-notification indicates that you are willing to defend yourself in court against a charge of copyright infringement, and you may be bound by civil and possibly criminal penalties if you are found liable.

Regards,
Annika
LiveJournal Abuse Prevention Team

I have written back, telling LJ that I wish to file a counter-notification under the DMCA, which means they must put the entry back up. My rationale is that I have posted it under Fair Use doctrine, which trumps copyright. Which means, it goes back up, and if The Western Front wishes to continue this game, they will have to take me to court now. Which I would welcome, because I know I'll win under Fair Use.

Incidentally, they also DMCA'd the image on my Facebook profile. I'm going to let that one slide for now, in the spirit of picking my battles. The LiveJournal entry is an easier case to prove Fair Use on.

And now I say to The Western Front: Your move.

Comments

[pocketlama.livejournal.com]

Send me the html for the post and I'll mirror it for you if you want. FTW(F)!

[kevynjacobs.livejournal.com]

Heh. Thanks for the offer, but I'll pass right now -- by filing the DMCA counter-notification, I have made LiveJournal legally obligated to reinstate the contested material within 14 days. That way, they are legally protected -- they took the necessary steps required under law -- and if the Western Front wants to continue this fight, they'll now have to take me to court.

[djmadadam.livejournal.com]

Wait, is this that image about which you contacted the photographer politely requesting to use it in your journal and instead got a big fat NO?

I can't see embedded images using this computer (they're blocked).

[kevynjacobs.livejournal.com]

One and the same!

a lesson in publishing for students at Western

[teledildonix.livejournal.com]

I think you are doing a valuable service for the people who are staff and/or students at the Western Front. Rather than having to deal with hostile lawyers or businesspeople, they get to deal with an amiable and reasonable member of the general public (you) who is simply going about the matter in a polite way. Instead of being harangued and humiliated by somebody's lawywers for their ridiculous interference with the Fair Use doctrine of our laws, they are being gently reminded of the law by somebody who isn't going to trample all over their student newspaper in the process. I think you are actually helping the Western Front in the long run, in a truly educational sense.

Meanwhile, i must say i am so glad to see you sticking to your guns over this issue. Of course, it is totally completely 'cut-and-dry' and i would be extremely surprised if somebody in a legal department over at WWU doesn't soon inform the Western Front of their obvious error. It's actually rather odd to hear that nobody from the pack of lawyers living in their batcaves at the University has come forward to show the Western Front newspaper the specific legal doctrines which cover exactly this sort of situation, and how any court would simply dismiss this sort of a case prima facie as soon as any judge and actual copyright lawyers come to an awareness of the facts.

I would wish you more 'good luck', but you obviously don't need it in this particular situation, as the laws are firmly and rather unambiguously on your side. It's kind of weird that Ms. Bachen would even get engaged in such a pointless conflict when there are so many decades of crystal-clear copyright law and Fair Use precedents which have been established in her profession.