Hey, Diebold has managed to start the ball rolling on making fair use easier to defend! And I’m too busy studying to do much more then post a snip of Fred von Lohmann’s article and run.
In granting summary judgment to OPG and the Swarthmore students, U.S. District Court Judge Jeremy Fogel easily concluded that the republication of the Diebold email archives was fair use as a matter of law. Pivotal to the court’s conclusion was the fact that there was no commercial market for these e-mails, and thus the re-publication in no way diminished the (nonexistent) commercial value of the works.
According to the Court, “Diebold sought to use the DMCA’s safe harbor provisions – which were designed to protect ISPs, not copyright holders – as a sword to suppress publication of embarrassing content rather than as a shield to protect its intellectual property.” The court held that ยง512(f) imposes liability on any copyright owner who sends a DMCA takedown notice that “knowingly” and “materially” misrepresents that copyright infringement has occurred.