A d m c A claim against a startup forced the company to remove more than twenty years of interviews featuring Donald Trump from their website. What's the story behind the controversy? I'm Jonathan Strickland and this was tech stuff Daily between. Donald Trump participated in nearly fifteen hours of interviews during his various appearances on the Howard Stern Show.
A website called fact based that's f A C T B A dot s E, which is the property of a startup company called fact Squared, created an audio archive of those appearances and made it available online. The website wasn't hosting the audio itself, instead, it was linking from sources like YouTube and SoundCloud. The company had begun to upload the audio files to a company owned server, but
was interrupted in the process. On September two, thousand seventeen, Sirius XM Radio sent a cease and assist letter to fact squared and filed a takedown notice under the d m c A. YouTube and SoundCloud pulled the audio from their services, leaving the archive filled with dead links. D m c A stands for the Digital Millennium Copyright Act. Under US law, the owner of intellectual property can file a claim against others who are using that property without authorization.
In other words, if you own some form of copyrighted work, such as a film or a song, and someone else makes use of it without clearing it with you first, you can file a claim against that person. Many platforms like YouTube will remove or de activate unauthorized copies upon receiving such a notice. In the case of someone either trying to distribute a work belonging to someone else or passing off the media as their own work, it seems
like a pretty clear cut case. If the material doesn't be long to you, you don't have the right to do that. But there are other cases that fall into more fuzzy categories. Sometimes you may want to make use of an existing work in order to comment upon it. For example, you may wish to include a film clip from a movie you're critiquing, or maybe use it as an example to illustrate a particular point. Or you might want to include samples when you're talking about the works
as a matter of news reporting. These cases fall under a category called fair use. Fair use allows people to include portions of other people's work. You don't have to hold the copyright to a novel in order to include a passage of that novel for the purposes of commentary. Fact Squared could attempt to make the argument that their archive of interviews falls under the umbrella of fair use. If a court agrees, then fact base can go back
to hosting the archive. Therein lies the rub. Whether a particular instance falls under fair use isn't something you figure out ahead of time. It only shakes out in a courtroom. The defendants responsibility is to demonstrate that their use of the intellectual property meets the criteria for fair use. In the United States, those criteria include four factors. The purpose and character of how you use that original material is the first component. Are you using it to make some
sort of point? Are you critiquing the original work? Are you relying upon it for analysis or illustration? Are you parodying the original work and expanding upon its original expression and meaning. The second factor is the nature of the copyrighted work itself. In general, courts are more lenient about fair use if you're taking from nonfiction sources like biographies or histories. Then if you lift large portions from works
of fictions such as novels or movies. The third factor is how much of the original material you're actually using. Referencing a line or a paragraph from a book is different from including six chapters of material. Generally speaking, the more of the original work you use, the more challenging it is to argue fair use. There is, however, no magical minimum amount you can stick to and avoid the
problem altogether. So if you've heard that you can include fifteen seconds or less of any song and that's totally fine, that's not actually based on law. The fourth factor is the effect of your use of the material upon the potential market for that original work. That means, if your publication could affect the sales of the original work in a negative way, it'll be harder to argue that this
is a case of fair use. Even if you are certain your use of someone else's copyrighted material meets the criteria for fair use, the issue won't come up unless there's a claim against your example. At that point, the issue might move into a court where you could argue that your use meets the requirements laid out by the fair use definition. It would still be up to the court to decide if in fact that was the case. Getting back to the Donald Trump interviews, fact Squared might
have a difficult time defending their archive live. They were posting the interviews largely without commentary or analysis, meaning their use was not in any way transformative. While they didn't include entire episodes of the Howard Sterns Show, they did include most of the interviews in their entirety. It may turn out that all parties will find an amicable approach to archiving the material, which one could argue does have
historical value. At the very least, it provides a great example of how complicated intellectual property and fair use really are. To learn more about technology and how it relates to copyright, as well as every other tech topic imaginable, check out the Tech Stuff podcast. The show publishes twice a week and is a long form deep dive on all things tech. That's all for me for now, See you next time.