Comment by prirun | Hacker News Reader

Comment by prirun | Hacker News Reader

I would review this link about disputing the DMCA copyright claims against your museum:

https://www.eff.org/issues/intellectual-property/guide-to-yo...

IANAL, but IMO, you have several points in your favor to argue that yours is "fair use":

1. You're not (I presume) making money from it

2. Part of it is news, which is more likely to be fair use than creative works.

3. The content is old and the quality is poor compared to today's standards.

4. The current market value of the content is not very high. It's not like you are publishing the upcoming Dune sequel. Current market value and whether you are taking away money from the copyright owner are considerations in determining fair use.

If you are actually setup as a museum or online library, I would think that would bolster your case even further that this is fair use.

As I said, I am not a lawyer and this is only my opinion. However, I do think people are much too quick to cave on these automated DMCA takedowns. If you do dispute it, what's the likelihood this Indian company or Sony is going to sue you? Whether you are willing to take that risk is of course your decision, but their entire operation would fall apart if everyone disputed their claims. It only works because everyone caves immediately.

(Also not a lawyer and not giving any legal advice here.)

Some of the points may be true, but it is virtually impossible that these uses are fair.

Here are some reasons:

1. While the content may be old, and the production quality may not be considered high by today's viewers, these factors are not really relevant. The quality of the reproduction of the works, meanwhile, is good enough that they can be effectively viewed; while these may be less marketable than a copy made from a master, this is more than faithful enough to serve as a market replacement for the original (and thus infringes).

2. The current overall market value of the works is irrelevant. The question in an infringement suit is not whether or not there is a market for the work; it is whether or not whatever value the work could have is affected by the re-used version being used as a replacement. A popular work may have a greater market value than an unpopular one, but copyright law does not protect works based on popularity. Even if the actual market value of the original is near zero anyway, this does not make giving away free copies a fair use (since that destroys whatever market value the original could have).

3. The work has not been transformed in any way. The reproduction is faithful (to the extent this was technologically possible). The copies tend to be of the entire work. The purpose of the work (display for viewing) is the same as the original purpose; there is no transformation.

The channel here is reproducing the original works in their entirety. These copies serve as a good substitute for any copies the original copyright holder could be making and selling/licensing. This boils down to the question: do these copies fulfill any demand there might be for the originals? The answer is yes. This is not fair use.

The question of whether or not a copyright holder strictly enforces the copyrights — in many cases, they don't — isn't relevant; they remain valid.

Now, for a lot of people, this seems unfair. The original works are often not available on the market. A lot of people think that non-marketed works should be able to be copied by non-profits for the public's use. But that's not something the law allows.

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