Apparently companies like Fox, Virgin Mobile, Microsoft, and HBO think nothing of violating the express copyright statements on sites like Flicker in which users have reserved certain copyright rights, and prohibited commercial use of their images.  In the case of Fox, the use of the image directly contradicted an express statement of copyright ownership at the bottom of the owner’s blog.

So what do I make of this?  First, it reinforces my impression that the Internet Intellectual Property debate (if there still is such a thing) continues to favor Big Intellectual Property.  As evidence of this point, you really need go no further than the fact that spokesmen for Fox, Virgin Mobile and Microsoft were all “unavailable for comment.”  Hmm.  If any of those companies were truly remorseful, I suspect they may have made a spokesman available to the Post.  Clearly, when Fox steals an image from a blog, it’s not a big deal.  However when you download the new season of Fox’s 24, the FBI needs to be involved.

Let me make one thing clear:  I don’t believe that Intellectual property infringement is acceptable for any reason.  However, my day-to-day experience with this issue leads me to believe that Big IP feels that there are no limits to their power.  Not a week goes by when, in my capacity as DMCA agent for some of my clients, a DMCA notice is withdrawn because someone from Big IP shot first, and asked questions later.  Who is the victim in that case?  Certainly not the copyright owner.  It’s the site owner whose site goes down for a couple of days while they try to straighten the dispute out with the IP owner, or their representatives, who, in many cases, have zero interest in moving quickly.

What should be done?  When sending a DMCA take down notice, copyright owners should be required to make a good faith effort to ensure that their statements are accurate, and should be liable for the statements made by their representatives.  The DMCA should be clarified so that the “penalty of perjury statement” applies to both the “good faith” statement of illegality *and* the statement of authorization.  While many courts have held that this is the case, most copyright owners and their representatives assert that it only applies to the statement of authorization. 

Making these changes would go a long way to reinforcing for Big IP that their actions, both as copyright owners, and as users, have implications.