The Lenz Case is Victim Shaming Says Orlowski

Andrew Orlowski, writing for The Register, has done the best job so far of placing the “Dancing Baby” case (Lenz v UMG) in its proper context — as part of Silicon Valley’s broader strategy to strip individuals of their rights.  Not just professional creators of copyrighted works. All individuals.

“If Big Tech can get the public to cheer as they disenfranchise themselves, then victory will be all the sweeter.”

“Understanding the “Dancing Baby” case properly – to see why Silicon Valley has gone to war – requires you to look beyond the specifics of a baby dancing on YouTube to the underlying legal issues being contested. Silicon Valley has doggedly kept this case running for eight years and it isn’t doing so for fun. It wants to extend its own power and diminish everyone else’s.

For some readers, looking beyond the immediate absurdities of the case is tough to do. If a case highlights a legal absurdity, then it follows that the law must be repealed. But we don’t repeal accountancy fraud laws because they’re technically complex or murder laws because sometimes the wrong guy gets caught. Before we repeal a law, we must find out if there is an underlying justified grievance or issue of justice. So a response of “scrap this law” is a serious intellectual cop-out.”

Read the full story here.

© 2015, David Newhoff. All rights reserved.

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13 Responses to The Lenz Case is Victim Shaming Says Orlowski

  1. Sam Flintlock says:

    I strongly disagree with you on Lenz for several reasons.

    Firstly, we do know that UMG chose not to consider fair use. Read the deputation.

    “Prince believes it is wrong for YouTube, or any other user-generated site, to appropriate his music without his consent. That position has nothing to do with any particular video that uses his songs. It’s simply a matter of principle. And legally, he has the right to have his music removed. We support him and this important principle. That’s why, over the last few months, we have asked YouTube to remove thousands of different videos that use Prince music without his permission.”

    That’s very clear. UMG took the position that all UGC containing Prince’s music should be removed, as a point of principle. Regardless of fair use.

    It also shows that they did consider this pretty carefully and chose to proceed.

    Which is why they didn’t, to the best of my knowledge, try to settle with Lenz. And, quite honestly, I’d guess a courtesy thousand bucks (peanuts to UMG) would have sorted it without court action. They chose to fight this one. They also were the ones who made the first move with the DMCA. It’s not really “victim blaming” to point out that you aren’t a victim if you threw the first punch and repeatedly chose to carry on the fight.

    What’s actually being asked is a very low bar. Potential fair use only needs to be considered, not looked into in any detail. And to prevail, bad faith will still need to be shown. (And it’s that which has tripped up UMG, because of their public statements). That’s something any indie or DIY artist can make easily. “I considered fair use and didn’t think it qualified because XXX” is all that’s needed to show good faith. All that’s changed is that “I didn’t consider fair use because I don’t care about it” is explicitly not acceptable.

    What’s actually happening is that it’s being mischievously reported by those who want to undermine copyright in general. If you read the end conclusion of the Register article, they actually agree with me on that:

    “On sober reading, it becomes apparent that the court said something quite different to what some people wish it had said. Automated takedowns are fine, it seems. Indeed, the court explicitly approves of them as a legitimate, fair-use-has-been-considered process: “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.”

    And you don’t actually need to call a lawyer to file a DMCA takedown. It doesn’t care how you considered it, merely that you did. Your “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,” the court noted.”

    So my view that this is not an unreasonable move is actually supported by the article. At least if you go with what the judgment says as opposed to what copyright abolitionists wish it said.

    You often point out that bad DMCA notices are a tiny minority of the overall picture. Which is entirely true and valid. As the Plagiarism Today article you linked in the previous article says:

    “In short, the fair use analysis doesn’t need to be accurate or even thorough. Rather, it just has to take place at some point.

    So, even though the ruling does require that rightsholders consider fair use before sending off a notice, most likely, nearly all DMCA filers is meeting the requirements already.”

    So, the vast majority of DMCA filers are already meeting the requirements. So it’s not exactly hard to meet. Which raises the question of why a tiny minority of actors aren’t doing so. Because, as you have said many times, most are fine. So if people aren’t, it’s fair to assume they’re being at least negligent about it. And up the potential penalties accordingly, which is where I go further than the court judgement. Because, actually, a few bad actors getting away with this isn’t fair on the majority who are putting in the minimal effort needed to comply. That’s why we have many laws. It’s not to protect us from the majority who wouldn’t dream of breaking them. It’s to stop a minority gaining unfair advantage over those who do what they’re supposed to. The Plagiarism Today article again backs me up on that point:

    “If this ruling forces you to drastically rethink your DMCA strategy, then you likely were doing something questionable before. Considering fair use isn’t just the legal thing to do, it’s also the ethical thing to do.”

    Should we really be fighting the corner of those who are “likely doing something questionable”?

    Obviously, we can debate this. But it feels like, at the moment, you’re more responding to the likes of Techcrunch and the EFF rather than what the (rather mild) judgement actually says.

    I think it’s more fruitful to stick to the facts. Then we can discuss the actual meat like whether it’s reasonable to expect a DMCA filer to consider fair use at all. Whether malice should be the requirement to show “bad faith” or whether negligence is enough. All that kind of stuff, which this judgement does actually impact.

    This also strikes me as a good opportunity to try and have a wider debate about fair use, the DMCA, other country’s law like the UK’s fair dealing and associated issues. I think that’s a useful possibility.

    Obviously, there’s some stuff I know we disagree on. I’m in favour of a licensing system for sampling (much like the one in existence for cover versions) which I know you aren’t. But there’s equally important issues we agree on. This case strikes me as a great opportunity to raise the necessity of “take down and stay down” again. In fact, it strengthens it, because “we need to deal with bad actors on both sides” is a very powerful argument.

    • David Newhoff says:

      Thanks for all that, Sam. I can’t do a point-by-point today, but suffice to say that we agree overall but for the fact that UMG did not actually pursue this case. Once Lenz’s video finally went back online subsequent to her counter-notice, UMG took no further action. Lenz (but really EFF) decided to sue UMG, and I don’t think I’m wrong about the reasons they placed so much stock in this case.

      That I am responding to some of the spin rather than the ruling itself I cannot dispute; but I think I usually try to stipulate that there are better legal analysts out there while I try to frame things for the general reader who is going to read a lot of that spin, etc. On instinct, as I said to commenter agraham999, this ruling may not prove to be very significant in the day to day. But I do think that the messages which emanate from the ruling only further confuse the individual rights holder, assuming he/she has any hope of using DMCA in the first place.

  2. Sam Flintlock says:

    It’s also worth noting that spin is taking place heavily from all parties.

    Take this from the Centre for the Protection of Intellectual Property:

    “and now it burdens people who are not lawyers with the duty to reach legal conclusions. ”

    That’s an explicit lie. It doesn’t and there’s no way even a cursory reading of the judgement suggests that it does.

    • David Newhoff says:

      Sam —

      Why not? As I mentioned, the individual rights holder is already confused about fair use. Now, in theory, an entity which uses his/her work has new and unreasonable grounds on which to pursue wrongful takedown litigation. Granted it might be shaky ground, especially at this point, but still the outcome of the ruling suggests that the individual rights holder — like an indie filmmaker — has to consider a rather preposterous set of hypotheticals as a non-attorney. Before issuing a DMCA takedown, he must consider whether or not the user of his work could make an effective fair use defense in a (at that point) purely hypothetical litigation. That does place a new burden on the layman rights holder, which is beyond overkill when using DMCA notice-and-takedown as a remedy. DMCA is its own system with a notice/counter-notice procedure that more or less works for non-attorneys. A wrongful takedown suit should be limited to clear abuse (i.e. when used to silence criticism or competition or commentary), but this actually creates a new avenue for such suits based on the expectation that a non-attorney can properly apply a fairly tricky legal doctrine. So, I think what’s being said by CPIP is a reasonable forecast of where this ruling could lead and is not spin.

      The bottom line is that DMCA should work for people who cannot go to court, but the moment the user of a work is big and the rights holder is small, then the rights holder is possibly disenfranchised from even using the DMCA by this ruling.

      • Sam Flintlock says:

        There really isn’t much chance of frivolous wrongful takedown litigation getting anywhere in my view.

        It’s where the burden of proof lies; it’s still with the person claiming bad faith. That’s an extremely high legal hurdle to jump. As an analogy, compare US and UK libel law. In UK law, the defendent needs to prove what they said wasn’t libelous. In the US, the litigator needs to prove that it was. That’s by far the biggest difference between the two systems and it’s obvious quite how much it changes things when you compare the two.

        A “consideration” on the other hand isn’t at all hard to achieve. In fact the court makes clear (pretty obviously counter to the desires of the EFF) that automated systems can also achieve that. It doesn’t even need to be considered in the context of litigation. Just a very broad application of the four factors. That doesn’t require specialist legal knowledge, just a bit of common sense. There’s nothing to say that it needs to be applied properly in a legal sense, merely that it needs to be taken into account.

        Largely, I think this is going to be limited to affecting those who are abusing the system. Those who are “doing something questionable” to quote Plagarism Today again. Because they’re the only ones who aren’t already doing this anyway. Most cases are very clear. I’m sure we’d agree that any fair use consideration of someone putting up a YouTube music video they don’t have the rights to is going to boil down to “of course it isn’t fair use”.

        One way I think CPIP’s hyberbole on this is highly damaging is that it can actually put people off using DMCAs when there’s really no need.

        I do understand your concern about the possibility of SLAPPs, but that’s a far wider issue and one that needs to be tackled holistically. (I certainly know of abuses of trademark law in that way). A cap on legal fees for all parties might be something worth pushing for. That would help alleviate your concerns to an extent I think?

        Honestly though, like you, I don’t consider the Lenz course that important in its own right. It’s how it may provide ammunition to give some of the bad faith abusers a bit of a shock that primarily leads to my support for this reason. I know you’ve pointed out that the EFF has prioritised this to the exclusion of some actual egregious abuses. That’s fair. But the reverse is also true. When this issue has been raised before (by WordPress in particular, who had some strong cases) the response has been “yeah, but that’s a minority” and general disinterest from copyright preservationists. So I think it’s understandable that an increasing level of mistrust has arisen on the issue.

      • David Newhoff says:

        Sam —

        While I generally agree that this ruling is unlikely to have much influence on the day-to-day (and I said as much in the post), I’m absolutely sure that the EFF (i.e. Silicon Valley) has spent eight years on this non-case because they are indeed gunning for copyright law and seeking to either expand fair use or change its meaning. And they picked Lenz, as Orlowski points out, because the particulars of the story are conveniently ridiculous and simple enough on the surface to garner some public support for legislative change. Certainly, this is why the EFF went for the objective definition of “consideration.” And, yes, I’m heartened by the fact that the court stated that the automated systems suffice in this regard.

        I’m not convinced that this ruling would necessarily lead to frivolous wrongful takedown litigation because that seems a long and costly road, which might not pay off too often. On the other hand, I stand by the assertion that I’ve made many times that plenty of well-meaning copyright owners don’t understand fair use doctrine at all. So, I don’t think it’s CPIP’s statement that’s going to frighten people off; I think it’s the headline that will seep into everyone’s consciousness “You must now consider fair use.” And the the number one mistake rights holders will make will be their assumption that if a use is non-commercial, it’s automatically fair. And isn’t that a boon for YouTube where millions of videos are uploaded by users with no commercial interest for themselves, but the site monetizes all the traffic while remaining protected by safe harbors in the DMCA? The next mistake they’ll make will be parody, which people also don’t understand, and that brings us to the example that comes to mind…

        I think about a GoldieBlox type case, in which the corporate entity uses the music of an artist less well-armed than the Beastie Boys. Some very high-powered Silicon Valley attorneys were gearing up for a fair use defense on that one — a defense I think was complete nonsense — but if attorneys could argue about the doctrine in GoldieBlox, how is some neophyte artist supposed to “consider” the matter? As the court said, she doesn’t have to be good at it (and she’d be wise to find a way to document her “consideration”), but the court still opened an avenue for her to be sued for using a non-litigious mechanism to enforce the most fundamental basis of her copyright interest in the music. I didn’t get into it because it’s a big legal harangue that may peter out, but there’s a question as to whether or not this ruling really does change fair use from a defense to a right.

  3. agraham999 says:

    I find it interesting that there is a log of cheering and viewing this as a victory, but keep in mind this case wasn’t about whether or not her use was in fact fair use, but it was the case of whether or not UMG considered fair use. This is a very different distinction and I see an awful lot of people hold this up as a victory for fair use. It actually isn’t that clear cut and I expect that when this goes before the Supreme court it could go either way…in which case those happy about the outcome could also regret their decision to fight this one.

    • David Newhoff says:

      Thanks for your comment. In truth, I don’t think the case is about UMG or Mrs. Lenz in any way whatsoever. Silicon Valley’s unofficial attorneys (EFF) saw an opportunity to potentially change the doctrine, which is why they hoped the court would rule that the consideration must be “objective.” This is consistent with all of the rhetoric adopted by the industry and by the so-called digital rights activists with regard to fair use doctrine, including proposals that U.S. application should be “exported” via trade deals. Historically, fair use is a defense against an infringement — an exception that is tested against four main criteria — and each case can be quite subjective. What the EFF and Co are seeking here is to rewrite the doctrine until, ultimately, the word “fair” no longer has any meaning, and use is merely assumed to be non-infringing.

      • agraham999 says:

        I understand that view as well. One of the troubling aspects of this case was the lack of technical understanding exhibited by the judges in thinking that any algorithm could possible understand the nuance involved in fair use, considering most humans can’t even tell what fair use it. I’m sure YouTube and others will view this also as a victory considering they likely know executing this technically is nearly impossible, but what could in fact happen is that we might end up with a technical solution that is actually worse than the overall solution in place now.

      • David Newhoff says:

        Actually, that part of the ruling is good news for the rights holders. It refers to the automation already being used by very large rights holders, who have to sift through millions of incidences of their works and send out tens of millions of notices. While this is not how individual or even small business rights holders apply DMCA, it’s generally considered good news that the court held that automated processes can be viewed as a subjective consideration of fair use.

        Speaking as a non-expert and non-attorney, I think it’s possible this ruling will prove to be entirely rhetorical because the nut of it seems to affirm that rights holders “must” do what they generally do in the first place. Jonathan Bailey made this statement in his post. I do worry about what Silicon Valley is after, though, and I do worry about a case involving a smaller rights holder vs a larger user. But in the big picture, this ruling may not have much effect, and it could be retracted or overruled by SCOTUS, etc.

      • agraham999 says:

        “Actually, that part of the ruling is good news for the rights holders. It refers to the automation already being used by very large rights holders, who have to sift through millions of incidences of their works and send out tens of millions of notices.”

        As a technologist who has been doing this for a very long time (and someone building these technologies), this actually is not good news for rights owners in my view. In the way that YouTube goes into court against GEMA and says…sorry, we can’t possibly know everything that goes into everything and so we need more protections, they can use this same defense to now put the burden on rights owners because they know very well this isn’t possible. The court essentially said technology should be used, but YouTube and others can likely state, this is not up to us to fix…rights owners will have to fix it.

        Luckily…I’m working on a project that will give those rights owners just the tool they need.

      • David Newhoff says:

        Interesting point. The copyright attorneys I know likely view it as good news inasmuch as it is status quo, and Google wouldn’t be the plaintiff in a DMCA case of this nature. They’re already protected by safe harbors. But everyone recognizes their ability to dodge responsibility from infringement while monetizing the hell out of it, so if you have a tech solution, more power to you!

  4. Sam Flintlock says:

    This will be of interest I think. It’s an analysis of the court ruling from the perspective of indie video game developers- http://www.gamasutra.com/blogs/MonaIbrahim/20150917/253803/The_Games_Industry_Under_the_New_Lenz_of_Fair_Use.php

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