dancing baby – Techdirt (original) (raw)

The Monkey Selfie Case Continues, But The Dancing Baby One Does Not

Thankfully this is not a post about the Monkey Selfie case, which should have ended by now but has not. Instead it’s about Lenz v. Universal, the Dancing Baby case, which shouldn’t have come to an end yet, but has. This week the EFF announced that the case has been settled.

The problem though isn’t that it the case has been settled. It had been remanded for trial, which would have been a long, expensive slog to not accomplish what the case really needed to accomplish: put teeth back into the Section 512(f) remedy that the DMCA is supposed to afford to deter illegitimate takedown demands. The problem is that the opportunity to provide that benefit was extinguished when the US Supreme Court denied cert and refused to review the Ninth Circuit’s interpretation of that provision. So we’ll be stuck with this precedent until another case can prompt another look by the court and the serious issue of censorship-via-takedown notice can finally get the judicial attention it deserves.

Maybe it will even be a case where a monkey has taken a video of himself dancing along to music, because the rights of monkeys have so far been a lot more successful in attracting en banc attention from the Ninth Circuit than the speech rights of people. And maybe it won’t even take 10 years of litigation (that’s 32 in monkey years) to find out.

Filed Under: 512f, copyright, dancing baby, fair use, lenz, monkey selfie, public domain, stefanie lenz
Companies: eff

from the dancing-without-end dept

Sometimes I think purgatory must be filing a lawsuit over a wrongful DMCA takedown notice. I’m pretty sure that’s how Stephanie Lenz feels. After all, she’s been fighting against Universal Music issuing a bogus DMCA takedown against her dancing baby, and I’m pretty sure that “baby” will be graduating high school before too long. Last we’d checked in, the Supreme Court was debating hearing the appeal in the case, and had asked the White House to weigh in. The White House responded last month with a truly bizarre argument, agreeing that the 9th Circuit’s ruling contained a “significant legal error” but said that this case was “not a suitable vehicle for correcting that mistake.”

Whether it was for that reason or for no reason at all, the Supreme Court has now decided not to hear the appeal, meaning that the case is back (once again) in District Court, where it may actually go to trial to determine if Universal Music knew that the video was fair use when it issued the initial takedown.

As we’ve discussed time and time again, this particular case is an important one, if Section 512(f) of the DMCA — the part that says you cannot file bogus DMCA takedowns — is to have any teeth. The problem, right now is that there are piles upon piles of abusive DMCA takedowns, targeting all sorts of content that is perfectly legitimate and non-infringing. Yet, because there is basically no punishment for issuing such takedowns, they continue. Unfortunately, this particular case keeps coming out with “mixed bag” rulings that probably won’t help very much in the long term. While we may have hoped that the Supreme Court would clear things up and make sure 512(f) actually does its job, it appears that’s unlikely to happen any time soon.

Filed Under: 512f, copyright, dancing baby, dmca 512, fair use, scotus, stephanie lenz, supreme court
Companies: umg

New Decision In Dancing Baby DMCA Takedown Case — And Everything Is Still A Mess

from the didn't-really-fix-anything dept

I got very excited yesterday when I saw a court system alert that there was a new decision out in the appeal of Lenz v. Universal. This was the Dancing Baby case where a toddler rocking out to a Prince song was seen as such an affront to Prince’s exclusive rights in his songs that his agent Universal Music felt it necessary to send a DMCA takedown notice to YouTube to have the video removed. Heaven forbid people share videos of their babies dancing to unlicensed music.

Of course, they shouldn’t need licenses, because videos like this one clearly make fair use of the music at issue. So Stephanie Lenz, whose video this was, through her lawyers at the EFF, sued Universal under Section 512(f) of the DMCA for having wrongfully caused her video to be taken down.

Last year, the Ninth Circuit heard the case on appeal and then in September issued a decision that generally pleased no one. Both Universal and Lenz petitioned for the Ninth Circuit to reconsider the decision en banc. En banc review was particularly important because the decision suggested that the panel felt hamstrung by the Ninth Circuit’s earlier decision in Rossi v. MPAA, a decision which had the effect of making it functionally impossible for people whose content had been wrongfully taken down to ever successfully sue the parties who had caused that to happen.

Although the updated language exorcises some unhelpful, under-litigated ideas that suggested automated takedown systems could be a “valid and good faith” way of processing takedowns while considering fair use, the new, amended decision does little to remediate any of the more serious underlying problems from the last version. The one bright spot from before fortunately remains: the Ninth Circuit has now made clear that fair use is something that takedown notice senders must consider before sending them. But as for what happens when they don’t, or what happens when they get it wrong, that part is still a confusing mess. The reissued decision doubles-down on the contention from Rossi that a takedown notice sender must have just a subjectively reasonable belief ? not an objectively reasonable one ? that the content in question is infringing. And, according to the majority of the three-judge panel (there was a dissent), it is for a jury to decide whether that belief was reasonable.

The fear from September remains that there is no real deterrent to people sending wrongful takedown notices that cause legitimate, non-infringing speech to be removed from the Internet. It is expensive and impractical to sue to be compensated for the harm this censorship causes, and having to do it before a jury, with an extremely high subjective standard, makes doing so even more unrealistic.

It’s possible that the Ninth Circuit may actually see the plaintiff as having been vindicated here; after all, she may still go to a jury and be awarded damages to compensate her, potentially even for the attorneys’ fees expended in fighting this fight. But note that the issue of whether she is due anything, and, if so, how much, has not yet been fully litigated, despite this case having been going on since 2007! Not everyone whose content is removed is as tenacious as Ms. Lenz or her EFF counsel, and not everyone can even begin to fight the fight when their content is unjustly removed.

Furthermore, sometimes the value in having speech posted on the Internet comes from having it posted *then*. No amount of compensation can truly make up for the effect of the censorship on a speaker’s right to be heard when he or she wanted to be heard. Consider, as we are in the thick of election season, what happens when election-related speech is taken down shortly before a vote. As was pointed out in several amicus briefs in support of the en banc rehearing, including one I filed on behalf of the Organization of Transformative Works and Public Knowledge, such DMCA-enabled censorship has happened before.

Suing won’t solve that problem, but at least the threat of a lawsuit might make someone think twice before sending a wrongful takedown notice. But if a lawsuit isn’t a realistic possibility then that deterrence won’t happen. What the parties supporting the plaintiff have been worried about is that the DMCA allows for an unprecedented form of censorship we would not normally allow. Think about it: if there were no DMCA then people who wanted content removed from the Internet would have to file well-pleaded and well-substantiated lawsuits articulating why the content in question was so wrongful that an injunction compelling its removal was justified in the face of any defense. In other words, without the DMCA, the question of fair use would get considered, and it would get considered by a judge.

But thanks to the DMCA would-be censors can save the time, cost, and burden of having to make sure they got the fair use question right before causing content to be removed ? and very likely with a complete lack of judicial oversight to hold them to account if they didn’t. No judge may ever scrutinize their decision to ensure that they didn’t abuse the shortcut to censorship to the DMCA affords them. Instead, Thursday’s decision only further ensures that this sort of abuse will continue unabated.

Filed Under: 512f, 9th circuit, automated takedowns, copyright, dancing baby, dmca, fair use, stephanie lenz, takedowns
Companies: universal music, youtube

Big, Confusing Mess Of A Fair Use Decision Over DMCA Takedowns

from the wait,-what? dept

Some potentially good news this morning — which may be undermined by the fine print. After many years of back and forth, the 9th Circuit appeals court has ruled that Universal Music may have violated the DMCA in not taking fair use into account before issuing a DMCA takedown request on a now famous YouTube video of Stephanie Lenz’s infant dancing to less than 30 seconds of a Prince song playing in the background. Because of this, there can now be a trial over whether or not Universal actually had a good faith belief that the video was not fair use.

This case has been going on forever, and if you’ve watched the video, it’s kind of amazing that a key case on fair use should be focused on that particular video, where you can barely even make out the music. The key question was whether or not Universal abused the DMCA in not first considering fair use before sending the takedown. This is fairly important, because, of course, DMCA takedowns suppress speech and if fair use is supposed to be the “pressure valve” that stops copyright from violating the First Amendment, it has to actually mean something. Section 512(f) of the DMCA says that the filer of a DMCA notice may be liable for damages for “misrepresentations,” but historically that has been an almost entirely toothless part of the law (in part because of earlier rulings in the Lenz case). People hoped that would change with this ruling, and while the beginning of the ruling suggests 512(f) is getting teeth, the end yanks them all away.

The ruling in the 9th Circuit starts out great, but starts getting iffy pretty fast.

Her claim boils down to a question of whether copyright holders have been abusing the extrajudicial takedown procedures provided for in the DMCA by declining to first evaluate whether the content qualifies as fair use. We hold that the statute requires copyright holders to consider fair use before sending a takedown notification, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law.

Sounds good, right? Anyone sending a DMCA notice needs to take fair use into account before sending a takedown. That may be trouble for all of those automated takedown filing systems out there, many of which we’ve written about. The court also reiterates that fair use is not “allowed infringement,” but rather it’s not infringement at all. This is also important (even though it says that directly in the law, many people pretend that it’s just an “allowed” infringement). The court is not impressed by Universal Music’s defense in the case, in which it argues that fair use is “not authorized by law” because, as Universal falsely claims, it is merely a “defense” to infringement. The court says that’s wrong:

Universal?s interpretation is incorrect as it conflates two different concepts: an affirmative defense that is labeled as such due to the procedural posture of the case, and an affirmative defense that excuses impermissible conduct. Supreme Court precedent squarely supports the conclusion that fair use does not fall into the latter camp: ?[A]nyone who . . . makes a fair use of the work is not an infringer of the copyright with respect to such use.?

So, that’s all good. But… the details matter, and from that point on… they’re weird. The court points to the earlier ruling, saying that the copyright holder “need only form a subjective good faith belief that a use is not authorized.” Thus, as long as the issuer can come up with some sort of argument for why they didn’t think it was fair use, they’re probably safe.

As a result, Lenz?s request to impose a subjective standard only with respect to factual beliefs and an objective standard with respect to legal determinations is untenable.

And because of that, the court leaves a big out for just about any copyright holder. It says the court has no place in questioning how the copyright holder decided whether the use was authorized or not:

To be clear, if a copyright holder ignores or neglects our unequivocal holding that it must consider fair use before sending a takedown notification, it is liable for damages under § 512(f). If, however, a copyright holder forms a subjective good faith belief the allegedly infringing material does not constitute fair use, we are in no position to dispute the copyright holder?s belief even if we would have reached the opposite conclusion.

The court says a copyright holder can’t just “pay lip service” to the idea that it checked on fair use, but in the same paragraph admits that, well, it basically can. Even worse, it says that forming a “good faith belief” doesn’t require actually investigating the details:

In order to comply with the strictures of § 512(c)(3)(A)(v), a copyright holder?s consideration of fair use need not be searching or intensive. We follow Rossi?s guidance that formation of a subjective good faith belief does not require investigation of the allegedly infringing content.

So…. huh? (1) You need to take into account if it’s fair use or not and you need to show a “good faith belief” that it’s fair use, but… (2) you don’t actually have to investigate anything, and the court cannot review your reasons for having a good faith belief. That’s not a loophole. It’s a blackhole that collapses 512(f) in on itself.

From there, it actually notes that automated takedowns… may be fine:

We note, without passing judgment, that the implementation of computer algorithms appears to be a valid and good faith middle ground for processing a plethora of content while still meeting the DMCA?s requirements to somehow consider fair use. Cf. Hotfile, 2013 WL 6336286, at *47 (?The Court . . . is unaware of any decision to date that actually addressed the need for human review, and the statute does not specify how belief of infringement may be formed or what knowledge may be chargeable to the notifying entity.?). For example, consideration of fair use may be sufficient if copyright holders utilize computer programs that automatically identify for takedown notifications content where: ?(1) the video track matches the video track of a copyrighted work submitted by a content owner; (2) the audio track matches the audio track of that same copyrighted work; and (3) nearly the entirety . . . is comprised of a single copyrighted work.?

So, uh, what? Automated takedowns may be fine because that’s sort of a way to consider fair use because… no reason given. That is not at all helpful.

On a separate note, the court confirms that the trial cannot move forward by arguing that Universal had “willful blindness” about the likelihood of fair use in the case, because Lenz didn’t really show that Universal had willful blindness. So that’s another dead end.

Finally, the court rejected Universal Music’s claim that Lenz had to show monetary damages in order to recover damages under 512(f). The court says 512(f) spans more than just monetary damages. Of course, that’s almost entirely meaningless in a world in which everyone has an out through “subjective good faith” that doesn’t even require investigating anything.

So this is a ruling that looks good up top, but gets bad as you read the details. There is a dissent, from Judge Milan Smith, pointing out some of the problems with the majority ruling, and the loophole that it creates. As the dissent notes, stating that something is infringing when you haven’t done any fair use analysis is a misrepresentation, and 512(f) covers misrepresentations. So, in the end, a possibly important ruling is undermined with a massive loophole, which likely will lead to a continuing barrage of DMCA takedowns, including automated takedowns that suppress speech. That seems… wrong.

Filed Under: 512f, 9th circuit, automated takedowns, copyright, dancing baby, dmca, fair use, free speech, good faith belief, stephanie lenz, takedowns

Dancing Babies, The DMCA, Fair Use And Whether Companies Should Pay For Bogus Takedowns

from the still-in-court dept

Earlier this week the Ninth Circuit heard oral arguments in the appeal of Lenz v. Universal. This was the case where Stephanie Lenz sued Universalbecause Universal had sent YouTube a takedown notice demanding it delete the home movie she had posted of her toddler dancing, simply because music by Prince was audible in the background. It’s a case whose resolution has been pending since 2007, despite the fact that it involves the interpretation of a fundamental part of the DMCA’s operation.

The portion of the DMCA at issue in this case is Section 512 of the copyright statute, which the DMCA added in 1998 along with Section 1201. As with Section 1201, Section 512 reflects a certain naivete by Congress in thinking any part of the DMCA was a good idea, rather than the innovation-choking and speech- chilling mess it has turned out to be. But looking at the statutory language you can kind of see how Congress thought it was all going to work, what with the internal checks and balances they put into the DMCA to prevent it from being abused. Unfortunately, while even as intended there are some severe shortcomings to how this balance was conceptualized, what’s worse is how it has not even been working as designed.

One such problem is with the content takedown system incorporated into Section 512. The point of Section 512 is to make it possible for intermediaries to host the rich universe of online content users depend on intermediaries to host. It does this by shifting the burden of having to police users’ content for potential copyright infringement from these intermediaries to copyright owners, who are better positioned to do it. Without this shift more online speech would likely be chilled, either because the fear of being held liable for hosting users’ infringing content would prompt intermediaries to over-censor legitimate content, or because the possibility of being held liable for user content would make being an Internet intermediary hosting it too crushingly high a risk to attempt at all.

Copyright owners often grumble about having the policing be their responsibility, but these complaints ignore the awesome power they get in return: by merely sending a takedown notice they are able, without any litigation or court order or third-party review, to cause online speech to be removed from the Internet. It is an awesome power, and it is one that Congress required them to use responsibly. That’s why the DMCA includes Section 512(f), as a mechanism to hold wayward parties accountable when they wield this powered unjustifiably.

Unfortunately this is a section of the statute that has lost much of its bite. A 2004 decision by the Ninth Circuit, Rossi v. MPAA, read into the statute a certain degree of equivocation about what the “good faith” requirement of a takedown notice actually demanded. Nonetheless, the statute on its face still requires that a valid takedown notice include a statement that the party sending it has “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” (emphasis added)

The big question in this case is what the “or the law” part means in terms of making a takedown notice legitimate. No one is disputing that the notice that took down the dancing baby video was authorized by the agent in charge of administering the rights to Prince’s music (at the hearing we learned that this is no longer Universal Music, but it was back then). But copyright is always contextual. In other words, just because someone uses (e.g., by posting to the Internet) a copyrighted work does not mean they have automatically infringed that work’s copyright. There may well be circumstances enabling that use, like a license (including a statutory or compulsory license), or fair use.

Whether the “or the law” part included authorization pursuant to fair use is what a significant part of the hearing addressed. Universal said that it didn’t, arguing that fair use was only an affirmative defense. By “affirmative defense” Universal meant that fair use was just something you could argue as a defense to being accused of copyright infringement in a lawsuit but not something that existed more integrally as part of copyright law itself. As such, Universal argued, it was not necessary to consider it when sending a takedown notice claiming that the use in question was not authorized.

EFF, arguing for Lenz, disagreed, however, arguing that the articulation of fair use in the statute, at 17 U.S.C. § 107, made fair use more than just a defense; rather, it is a statutory limitation constraining the scope of the copyright owner’s exclusive rights and just as much a part of the law as the parts enumerating those rights. As a result, the EFF argued, a copyright owner sending a takedown notice always has to consider whether the rights the notice is seeking to vindicate are at all constrained by the sort of use being made of the work. If the copyright owner doesn’t do that then it could be subject to the sanctions of 512(f).

Although one can never read the tea leaves from an oral argument, the judges did not seem to buy Universal’s argument that fair use was just an affirmative defense. They seemed more persuaded by the EFF’s position that it was enough a part of the copyright statute for at least some consideration of it to be required for a takedown notice to be valid. But then the court became concerned with the question of how much consideration was needed. After all, as Universal suggested (and EFF disagreed with), there may even be some question about whether the use of Prince’s music in the dancing baby video was itself fair. Fair use is a very squishy thing always dependent on the particular context of a particular use of a copyrighted work. Often it takes massive amounts of litigation to determine whether a use was fair, so the judges spent a lot of time questioning both parties about what a copyright owner (or its agent), if the statute requires them to consider fair use, must actually do on that front in order to not run afoul of the law’s requirements when sending takedown notices.

Universal argued that because it (and other similarly situated copyright holders) needed to send millions of takedown notices it would simply be too burdensome to have to consider fair use for each and every one of them. To this the EFF suggested that tools may be available to help triage the likely contenders needing closer analysis, but something else the EFF said I think drives the point home more aptly.

The DMCA also includes a “put back” process, at Section 512(g), so that Internet users’ whose content has wrongfully been removed can have it replaced. Universal argued that this process should be enough to deal with any wrongful takedowns, as it allows for wrongfully removed content to be replaced. (Universal also argued that this “put back” notice was also necessary to give the copyright holder notice that fair use might be an issue to consider.) But if this were the case then why have a Section 512(f) in the statute at all? There is nothing in the statute that suggests that a “put back” notice needs to happen for Section 512(f) to be able to operate. Furthermore, although the record in this case was unfortunately poor as to what percentage of removed content was ever put back pursuant to 512(g) put back notices, as the EFF noted, even if it were a very small percentage of removed content, a small percentage of millions of instances suggests that quite a bit of non-infringing content is still getting removed.

Moreover, there is no reason to suspect that the content that has been restored in response to these put back notices represents the entire universe of wrongfully removed content. There is little basis to presume that everyone else who had their content removed simply shrugged it off as a fair cop. Because a put back notice can conspicuously put a user in the line of fire of a copyright owner many users might not have wanted to tempt the trouble. Also, as the EFF observed, the DMCA takedown system is fairly labyrinth and often needs the assistance of counsel to help navigate it. This form of support is likely not available to most, and even in the case of Ms. Lenz it did not readily result in her home video of her kid dancing being restored.

Ultimately Universal is arguing that this outcome is ok: despite this harm to legitimate speech, copyright owners should nonetheless be entitled to cause millions and millions of instances of user-generated content to disappear from the Internet with very little effort, inconvenience, or oversight on their part. But it’s an argument that fails to recognize just what a privilege the takedown system represents. It is a huge shortcut, giving private parties the extraordinary power to be censors over Internet content without the trouble and expense of a lawsuit to first determine whether their rights have truly been infringed. With the DMCA copyright owners become judge, jury, and executioner over other people’s speech all on their own, and when they decide to sentence content for disappearance they get to use the takedown notice as the gun to the head of the intermediary to force it do the deed.

Universal spent a lot of time arguing that the DMCA was intended to be this sort of shortcut in order to be a “rapid response” system to online infringements. But the “rapid response” the DMCA offers is that copyright owners don’t first have to go to court. Nothing in statute suggests copyright owners are entitled to a response so rapid that they are excused from exercising the appropriate care a valid takedown notice requires ? or that even a lawsuit would require. As Universal would have it, they get to be censors over other people’s speech without any of the risk normally involved if they had to use the courts to vindicate their rights. Note that nothing in the DMCA precludes a copyright owner from suing an Internet user who has infringed its copyright. But with a lawsuit comes the risk that a copyright owner might have to pay the fees and costs of the defendant should their claims of infringement found unmeritorious (including because the targeted use was fair). According to Universal, however, copyright owners should face no similar consequence should the claims underpinning their takedown notices be similarly specious. Copyright owners should simply be able to cause content to be deleted at will, with no risk of any penalty to them for being wrong.

But that’s not what the statute says. As was also argued at the hearing, Section 512(f) creates the

penalty necessary to deter wrongful takedowns because without there being one, all the risk of the

takedown system would be borne by those whose free speech rights (both to speak freely and to freely

consume what others have said) are undermined by copyright owners’ glib censorship. As the saying

goes, with great power comes great responsibility, and it hardly misconstrues Congress’s intent, or the

express language of the statute, to demand copyright owners to carefully exercise that responsibility

before letting their takedown notices fly, and to sanction them when they don’t.

Filed Under: 512f, abuse, copyright, dancing baby, dmca, fair use, stephanie lenz, takedowns
Companies: eff, universal music

Court Says Trial Needed To Determine If Universal Music Violated DMCA With Dancing Baby Takedown

from the can-you-punish-false-takedowns dept

We’ve covered the Stephanie Lenz / dancing baby / fair use case for years — but now it looks like there’s finally going to be a trial to consider if Universal Music can be punished for sending a DMCA takedown notice on a video of Lenz’s infant son dancing to 29 seconds of a song by Prince, which Lenz asserts was clearly fair use. If you haven’t followed the case, it’s been argued back and forth for years. At one point, the court ruled that a copyright holder does need to take fair use into account before sending a DMCA takedown, but that there needs to be “subjective bad faith” by Universal Music in sending the takedown. In other words, Lenz (and the EFF, who is representing her) needs to show, effectively, that Universal knew that it was sending bogus takedowns. The EFF has argued that willful blindness by Universal meant that it had knowledge (amusingly, using precedents in copyright cases in the other direction, where copyright holders argue that willful blindness can be infringement).

There are a few other issues being fought over — including Universal Music’s contention that the DMCA doesn’t apply at all here (both because it insists it wasn’t really sending a DMCA takedown, even as YouTube required a DMCA takedown, and because it’s arguing that YouTube itself doesn’t qualify for the DMCA because it helps process videos — an argument courts have rejected repeatedly). However, Universal also sought summary judgment on the fair use issue in the other direction, arguing that it is clear that Universal did not have “subjective bad faith” in issuing the takedown, since it believed the takedown to be legit (and still does…). The judge has rejected both arguments for summary judgment, saying that there are disputed facts that need to have a full trial — in part because Lenz failed to show any evidence that Universal had reason to believe that there was a high probability that some of the videos it was taking down would be covered by fair use. This point is necessary if Lenz is going to demonstrate willful blindness.

Lenz does not present evidence suggesting that Universal subjectively believed either that there was a high probability that any given video might make fair use of a Prince composition or that her video in particular made fair use of Prince’s song “Let’s Go Crazy.” Lenz argues that her video was “self-evident” fair use and that Universal must have known it constituted fair use when it sent the Takedown Notice. However, as the Ninth Circuit recently has observed, the process of making a fair use determination “is neither a mechanistic exercise nor a gestalt undertaking, but a considered legal judgment.” …. A legal conclusion that fair use was “self-evident” necessarily would rest upon an objective measure rather than the subjective standard required by Rossi. Indeed, Universal presents evidence that Lenz herself initially did not view her claim as involving fair use….

Accordingly, the Court concludes that Lenz is not entitled to summary judgment based on the theory that Universal willfully blinded itself to the possibility that her video constituted fair use of Prince’s song. Nor is Universal entitled to summary judgment, as it has not shown that it lacked a subjective belief that there was a high probability that any given video might make fair use of a Prince composition. Lenz is free to argue that a reasonable actor in Universal’s position would have understood that fair use was “self-evident,” and that this circumstance is evidence of Universal’s alleged willful blindness. Universal likewise is free to argue that whatever the alleged shortcomings of its review process might have been, it did not act with the subjective intent required by §512(f).

In other words, this case, which has gone on for years, is going to continue for even more time as a full trial is about to happen.

Filed Under: dancing baby, dmca, lenz, stephanie lenz, takedowns
Companies: universal music

Why It's Almost Impossible To Get Punished For A Bogus DMCA Takedown

from the not-going-to-happen dept

Yesterday, we wrote about the latest in the long running saga that is Stephanie Lenz’s battle (with the help of the EFF) over whether or not Universal Music was right to issue a DMCA takedown for her 29 second video of her toddler son dancing to a (barely audible) Prince song. Once again, here’s the video.

As we noted in the story, it seemed unlikely that Lenz and the EFF would prevail in getting Universal Music to pay up for the bogus takedown. Joe Mullin, who was in the courtroom during the latest hearing provides some additional details that highlight just why this is going to be difficult for them. The problem isn’t necessarily the case or the situation, but the fact that the parts of the DMCA used to push back against bogus takedowns are ridiculously weak. It has been determined that only in cases of “_subjective bad faith_” would there be fees awarded. That means EFF has to show that Universal knew that this was fair use, and then decided to issue the takedown anyway.

[District Court Judge Jeremy] Fogel said that it isn’t clear that EFF has met the high burden of showing that Universal exhibited “subjective bad faith.”

EFF would have to show that there’s no way the video was not fair use, first of all. In addition, EFF lawyers would have to show “there was some concerted activity on Universal’s part to blind itself to that fact—that even knowing they had nothing to stand on with regards to fair use, they put out a takedown.” Even if EFF could show that Universal Music acted recklessly or with negligence—that wouldn’t be enough.

That’s a pretty tall order, and a clear weakness in the DMCA in preventing bogus takedowns (an all too common phenomenon). While the EFF properly points out that Universal’s employee who sent the DMCA “had no idea what to look for,” that still might not be enough to show subjective bad faith — just laziness.

Additionally, there is some skepticism about if it’s worth fighting this through, since the amount of money at stake is minimal:

The amount of damages EFF is fighting for is tiny, in the grand scheme of things. And Fogel also expressed skepticism that EFF could ask for much in damages. He has already limited the amount they can ask for. EFF is asking for compensation for 10 hours of Lenz’s time, spent dealing with the takedown notice before she contacted EFF, based on the Pennsylvania minimum wage at the time of 6.25perhour.They’realsoaskingforcompensation6.25 per hour. They’re also asking for compensation 6.25perhour.They’realsoaskingforcompensation1,275 for the time that EFF attorneys spent advising her pre-suit.

Despite the fact that not much money can be won, in an interview with Ars, [EFF’s Corynne] McSherry said that the principle is still important, so that content owners will pause before they shoot out takedown requests.

I understand the principle argument — but courts often aren’t that interested in spending time on such cases, which they believe are wasting time from cases that are more important. At the very least, Judge Fogel appears willing to let a jury weigh in on this one, and has noted that despite all of the hurdles EFF and Lenz face, it’s not a complete slam dunk for Universal: “A reasonable fact-finder could conclude, that this is an action taken in subjective bad faith.”

And so the case moves on. I’m still betting that Universal Music will be happy with the end result, and I worry that the resulting precedent will be used to justify more broad and bogus takedowns. Hopefully, I’m proven wrong.

Filed Under: bogus takedown, dancing baby, dmca, fair use, stephanie lenz
Companies: eff, universal music

Universal Claiming Dancing Baby Video Not An Obvious Case Of Fair Use

from the oh-really-now? dept

We had just been discussing a lawsuit in South Korea that appeared to be quite similar to the infamous Lenz case, in the US. If you don’t recall, that case involved Universal Music issuing a DMCA takedown after a mother posted a 29-second video of her toddler dancing to the radio where a Prince song was playing. While Universal Music did not contest the counternotice of the woman, the woman (with the help of the EFF) sued Universal, claiming that it violated the DMCA in issuing a takedown on a video that was obviously fair use.

Universal claimed that since fair use is “just a defense” under the law, and not (technically) a “right,” that it had no obligation to consider fair use before issuing a takedown. Thankfully, the judge disagreed. That wasn’t everything, though, as this case has dragged on and on for years since then, as the EFF and Lenz sought to make Universal actually liable for damages for filing a bogus DMCA takedown. Earlier this year, the court ruled that damages were available, but quite limited.

The latest part of the case is that both sides have filed for summary judgment, with Lenz arguing that the takedown violated the law, since Universal did not believe in good faith that the video was infringing (as required by the law). Universal’s motion, on the other hand, makes the argument that the 29-second video is not an obvious case of fair use. It still argues that there’s no requirement to check for fair use first, but says that even if it’s supposed to, this video was not obviously fair use.

Now, before we get into the reasons that Universal gives, it’s worth looking at the video itself, so here you go:

Yeah, that’s the video that Universal claims is not obviously fair use of that music you can barely hear in the background. Seriously. So, let’s take a look at Universal Music’s argument. You can read the full filing here, if you’d like (well, not the full filing, as parts are redacted):

Basically, the argument is that (a) Universal Music really did consider whether or not it was fair use, because they had some poor schlub working for them watch the video twice and decide that it wasn’t fair use because the music is in most of the video and (b) that Lenz and her friends and lawyers did not initially consider it a fair use issue — so if they didn’t think it was a fair use case, then how could Universal Music? Specifically, it mocks the EFF, since the EFF is such a strong believer in fair use for apparently not immediately telling Lenz it was a fair use case. Admittedly, Lenz’s suggestion that the EFF told her it wasn’t fair use certainly doesn’t look good for the “obvious fair use” claim.

From there, though, Universal goes on to make the argument that it did consider it, and it still doesn’t seem to think the video is fair use. But its analysis here is really weak. It claims that this was a “commercial use,” because it was posted on YouTube, a commercial site. But that’s blaming the wrong party. It was not a commercial use for the person actually uploading the video, Ms. Lenz. Universal then argues that the video is not transformative, but again that doesn’t make much sense to me. It’s not as if this video’s purpose is anything like the purpose of the original song. In terms of “the nature of the work,” Universal says that because it’s music, it’s protected — but that’s only a part of the analysis. The video has the song in it, but it’s not “the song.” So it should be the nature of video that’s analyzed, not the nature of the song. And the nature of the video is that it was a silly home video, obviously for personal, non-commercial use. As for “the amount of the work,” again, Universal shifts what it looks at. It says since the song appears in the whole video, then it weighs against fair use. But, again, it’s looking at the wrong thing. Here, the question is the amount of the original work, and in this case it’s 29 seconds of a much longer song (something Universal ignores). Finally, the big one: the commercial impact of the video, much of Universal’s reasoning is redacted, but it appears its argument is that Universal/Prince could sell the right to use the song in videos. That seems pretty weak. No one is going to pay for a song in a video like this.

Just the fact that we need to have a big legal fight over whether or not the video above is fair use is really sad. Any copyright law that doesn’t immediately consider that kind of use fair use is broken. In the meantime, I’m curious if someone at Universal Music could enlighten us to what would be considered fair use in its mind?

Filed Under: copyright, dancing baby, fair use, lenz
Companies: eff, universal music

from the go-free-expression dept

If you follow copyright issues online, by now you’ve undoubtedly heard of the famous Lenz case, involving Universal Music issuing a takedown to YouTube on a 29-second home video a mother took of her toddler son dancing to a Prince song. While Universal didn’t protest the counternotice, the EFF sued, pointing out that it should have taken fair use into account.

Wonil Chung, an intellectual property lawyer in South Korea alerted us to a blog post he wrote about a case that is almost identical to the Lenz case in the US. It involved a father filming his toddler daughter dancing and singing to a Korean pop star. Again, a takedown notice was issued, and the guy sued in response. Of course, it’s worth noting that South Korean copyright law can be much stricter than US copyright law (in part due to lobbying pressure from — you guessed it — US entertainment industry lobbyists as part of a “free trade agreement” the US signed with South Korea). It’s also worth noting that South Korea’s concept of fair use is extremely narrow.

However, thankfully, the court sided with the father, pointing out that the video itself was not a substitute for the song, it had a non-commercial purpose, and only 15-seconds of the song were used. Perhaps most importantly, it noted:

“If this kind of UCC [User Created Content] is barred from uploading online, it results in a unnecessarily excessive restraint on the free expression.”

Even beyond that, unlike the court in the Lenz case, the Korean court ordered the copyright holder to pay the father for “mental damages suffered from the takedown.” This is nice to see, and Chung’s summary of the ruling pretty much wraps it up:

Another interesting part of this ruling is that the court clearly found that the free expression under the constitution of South Korea must be considered fully and fairly in determining whether there exists a copyright infringement or not. Although the Korean Copyright Act has a fair-use-like clause, the clause is stated relatively narrowly so there has been a certain criticism that Korean court is not active in holding up a fair use defense. But this ruling held that the constitutional right of free expression has the equal value as a copyright stated in the Copyright Act which is a subordinate law to the constitution. That’s why I welcome this ruling and expect to see the balance between the free expression and copyright with more fair use defences accepted in the Korean court in the future.

His full post has more details and quotes from the ruling.

Filed Under: copyright, dancing baby, fair use, korea

from the this-isn't-over-just-yet... dept

Strong copyright system supporters have always tried to push aside fair use. Sometimes they pretend it doesn’t actually exist. Sometimes, they claim that it stifles creativity. However, in the last few years, they’ve pretty much aligned their talking points on fair use. You’ll hear it repeated again and again: fair use is “just a defense, not a right.” This is a bit of semantics that basically tries to minimize what fair use represents and what it’s designed to allow. The argument, effectively, is that there’s no “right” to fair use, and there’s no clear cut meaning for fair use. Instead, it can and should only be brought up as a defense in court. In other words, fair use does not exist until a court says it exists.

This is misleading and not entirely correct. The reason fair use is allowed as a defense is because there is a right to make use of certain types of content in certain types of ways that constitute “fair use” without first needing to receive permission from the copyright holder. But, it was still this argument that Universal Music recently used to defend itself against a lawsuit from the EFF, concerning the now infamous 29-second video of a little kid dancing, with some music from Prince playing in the background. Everyone now agrees that this video was fair use. Universal Music let the video go back online and did not sue. The DMCA has a clause that allows damages to be sought against a falsely filed takedown notice — which was basically designed to punish those who send a DMCA takedown claiming copyright over something for which they do not actually hold the copyright. In this case, the EFF claims that since this is obvious fair use, then the DMCA notice was falsely filed. Universal, on the other hand, asked the court to dismiss the case, saying it need not consider fair use when filing a DMCA takedown notice — mainly because fair use is just a defense, not a right.

The judge handed the EFF something of a victory, though, allowing the case to move forward and noting that copyright owners should consider fair use before sending out takedown notices. To be honest, I’m a bit surprised by the decision. While I agree that it makes sense, it wasn’t at all clear that the law actually meant for fair use to be taken into account. In fact, I rather doubt that this sort of scenario was even considered by those who wrote and debated the DMCA. Universal will likely appeal on this point, and so we’re pretty far from establishing definitively if fair use needs to be taken into account. However, if this ruling stands, the claim that “fair use is a defense, not a right” loses a lot of its bite. The court effectively said the opposite:

Even if Universal is correct that fair use only excuses infringement, the fact remains that fair use is a lawful use of a copyright. Accordingly, in order for a copyright owner to proceed under the DMCA with ‘a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,’ the owner must evaluate whether the material makes fair use of the copyright.

The judge also noted that it wasn’t any sort of onerous burden to expect the copyright holder to make a fair use determination, since it has to review the content to make sure it’s infringing in the first place:

Undoubtedly, some evaluations of fair use will be more complicated than others. But in the majority of cases, a consideration of fair use prior to issuing a takedown notice will not be so complicated as to jeopardize a copyright owner’s ability to respond rapidly to potential infringements. The DMCA already requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice; indeed, it would be impossible to meet any of the requirements of Section 512(c) without doing so. A consideration of the applicability of the fair use doctrine simply is part of that initial review.

All in all, this is a definite win for supporters of fair use — and a definite loss for those who trot out the “defense, not a right” line. As for the rest of this particular case, though, the judge indicated that the EFF may have a difficult time winning, noting that even if the copyright holder takes fair use into account, the specifics would have to be pretty extreme to then decide that it used “bad faith” in sending the takedown. In other words, the judge is saying that Universal should take fair use into account, but that doesn’t mean that sending the takedown was done in bad faith.

Filed Under: dancing baby, defense, dmca, fair use, prince, right
Companies: eff, universal music