> Legally the company is allowed to do this of course, as they own the rights.
Isn't this textbook fair use? Nothing about these clips being shared on Twitter replaces the viewing experience of Cuties. The tweets are definitely transformative and provide a critique of the film. Doesn't copyright law explicitly permit this use of copyrighted works?
Not only is it textbook fair use, this is exactly why copyright law has a fair use exemption. It does not exist for you to selectively manipulate the public commons by removing only negative reviews that happened to use small snippets of the original material. This is why reviews are protected.
The DMCA is a bit broken this way; in theory it's balanced by the ability for these people to counternotice but in practice that's taking on an absurd amount of liability on a consumer to do so, so only a very foolhardy consumer would ever do it and it may as well not exist.
In theory, a DMCA notice requires a statement of Netflix good-faith belief, that the content is infringing, under the penalty of perjury, and should be triable - though good luck going after a G$ company.
If Netflix' position is that the most provocative clips or screenshots reduce the market for the film, doesn't this undermine their claim that the prurient aspect of the film is secondary to the commentary portion? To put it another way, Netflix is taking a position closer to Playboy than the Discovery Channel in terms of the positioning of the film.
It is relatively harder to argue fair use in the use of Playboy images or porn clips than non-"adult" material. Because the image/clip itself undermines the market value of the work, regardless of the motivation or intent of the critic.
Unfortunately the only way to be "sure" (it's obvious fair use) is to go to court over it unless Twitter wants to be liable for these users' content by not honoring these takedowns.
And the punishment to Netflix once you win in court is just damages (good luck showing any actual serious large damages here) and legal costs... there should be a massive fine and a loss of DMCA Section 512 expedited takedown privileges if you use it incorrectly.
> loss of DMCA Section 512 expedited takedown privileges
No such privilege exists, so I don't know what this is supposed to mean.
I suppose that you could put violators on a list where, for parties on that list, a 512 notice didn't require a takedown to stay in the safe harbor but triggered some other (new) process, like (for instance) notice to the user and defined-in-law period for the user to submit a counter-notice with a takedown only required to retain safe harbor against the copyrightbholder if no facially-valid counter-notice is received within a specified period, and the safe harbor against the user isn't applied if the takedown is done prior to the required opportunity to respond.
But that gets tricky to administer correctly (how long does DMCA-penalty-status last, how does it apply when third-party copyright agents like the RIAA are filing notices on behalf of copyright holders, is it the agent or the copyright holder that receives the penalty, etc., etc.)
Yeah: clearly to make that happen would require some kind of new process ;P. As for your questions, as clearly I am an angry Internet commentator being maximally punitive, the answers are simple: "everyone involved loses the ability to be de facto trusted forever" ;P. Of course, this makes no sense in practice, but neither does the status quo: the cost to Netflix for filing frivolous claims is essentially 0, and puts the burden entirely on the users, which is as ridiculous to me as my drastic alternative.
It's a very odd system. If you can prove you usually charge clients $1000/hour, then you can probably force the other side to pay you that fee. It therefore follows that if you think you have a very good chance of recovering legal fees, you may want to actively seek the best and most expensive lawyer possible, both to help your chances of victory and to punish your opponent if and when you win. Of course, this option is not available to people who cannot already afford the most expensive lawyer.
When the President got his legal fees paid by Stormy Daniels, his most expensive lawyer was charging about $850/hour. The judge cut it back, not because the lawyer was too expensive hourly, but because he felt the lawyer had billed too many hours.
When an attorney charges $500+ per hour, they never seem to justify that fee. Corporate litigation expenses can easily be thousands of dollars per hour. You have multiple paralegals. Multiple associates, and perhaps a partner. A case that makes it to a courtroom can exceed thousands per hour.
I paid a trademark attorney for some work at it was $350 for about 15 minutes of work. $10k per hour would be a stretch, but $1000 an hour? Not particularly noteworthy.
> loss of DMCA Section 512 expedited takedown privileges if you use it incorrectly
Not gonna happen. It would cut copyright bots off at the knees since they're currently designed to err on the side of false positives over false negatives and that's the way the media cartels want it.
You would have to break the RIAA and MPAA's hold over Congress first, and good luck with that. You can't vote them out because they own both sides. We're talking about multiple multi billion dollar companies here, when they go to congress with demands they get it. That's how we got the DMCA and ludicrous 120 copyright terms in the first place.
Obviously... trust me: I know that nothing I want is ever going to happen (and my having become a politician years ago--one who successfully sits on various elected boards and commissions--has only made that more clear to me, not less ;P).
If there were many of them either the supreme court or congress will likely limit them. That isn't to say either of the above think they are wrong so much as it is easy to see how they can be abused.
> If there were many of them either the supreme court or congress will likely limit them.
The Supreme Court has suggested a soft limit, suggesting, IIRC, that it is rare that an award of more than a single digit multiple of actual damages will satisfy due process analysis.
What is the cause of action here allowing damages, punitive or otherwise? Stating a copyright claim in a DMCA takedown notice based on a different reading of how the four factors of fair use, which the statute doesn't explicitly set standards for or any details on how they interact, differently than a court later interpreted them?
Sure, if the court viewed things your way Netflix would lose a copyright infringement case against you, but that's about it.
Debatable. A good faith case can be made that its not.
> Nothing about these clips being shared on Twitter replaces the viewing experience of Cuties.
"Replacing the viewing experience" isn't necessary to be outside of fair use, and the work at issue is probably the trailer itself, not Cuties. Which matters a lot when you look at the "amount and substantiality" prong of fair use analysis.
> The tweets are definitely transformative and provide a critique of the film.
Sure, I don't think anyone would argue that the purpose prong of fair use is in dispute.
> Doesn't copyright law explicitly permit this use of copyrighted works?
There is very little explicit about the "fair use" defense; even how the four prongs of the test interact isn't explicit.
A DMCA being wrongfully given doesn't put Twitter on the hook for following the takedown. Twitter decides whether or not it's worth the legal costs of ignoring a DMCA. Even if the issuer is very clearly in the wrong, it still costs money to do anything about it in court
Yes - in fact, the fact that they're negative makes it more fair use. Hell, there's a right-wing YouTuber who got away with reposting an entire left-wing YouTuber's video and just changing the title. The title change alone made it fair use and the left-winger who sued the right-winger now owes the right-winger money for filing such a frivolous lawsuit.
Isn't this textbook fair use? Nothing about these clips being shared on Twitter replaces the viewing experience of Cuties. The tweets are definitely transformative and provide a critique of the film. Doesn't copyright law explicitly permit this use of copyrighted works?