Category: Copyright

Don’t Start Copyright Battles You Don’t Understand

gavel smashing lightbulb

Every once in a while, a copyright litigation story makes a fine cautionary tale for users of social platforms, and this is true partly because the conflict tends to spawn misleading headlines or comments that add fuel to an outrage already borne of ignorance.  In this case, I am referring to Prince’s estate easily prevailing on summary judgment in a copyright dispute with a YouTuber named Kian Habib. 

For instance, in 2017, The Blast posted the headline Prince Sues Random Guy for Posting Concert Videos on YouTube, and the very short article that followed naturally made references to Prince’s famously litigious nature still presiding over the management of his estate since his untimely passing in April of 2016.  In a post several years ago, I commented on the nature of Prince’s desire to control the use of his music, opining that it was a natural extension of the passion he put into everything he did, noting that he tolerated neither corporate labels nor web platforms nor even fans making decisions about what he thought best for his music.  Nevertheless, the most famous litigation that bears his name Lenz v. UMG (a.k.a. “The Dancing Baby Case”) still lives in the zeitgeist as an archetype of Prince’s assumed belligerence, despite the fact that Lenz is a boondoggle initiated by the Electronic Frontier Foundation, and not by Prince or the label.

And that brings us to the facts in the matter of Comerica v. Habib, in which Habib, while operating his channel PersianCeltic, uploaded five videos featuring substantial amounts of six songs performed by Prince during one of two concerts Habib had attended.  I know people upload smartphone camera clips from live concerts all the time; and in most cases, when short clips are uploaded to, say, a Facebook page, it will not be the target of a takedown by the artist(s) or their agents.  This does not mean said uploads are necessarily non-infringing, only that the rightsholders do not see them as problematic.

In Habib’s case, however, there are two major distinctions that make him someone other than a “random guy,” as The Blast described him.  First, a YouTube channel seeking subscribers will be seen as legally distinct (i.e. as a commercial enterprise) from a personal Facebook page; and second, Habib took the very unwise step in this case of filing a counter-notice in response to Comerica’s valid takedown request directed at the five videos.  

Do Not File Counter Notices Unless You Know What You Are Doing

As explained in detail in an older post, the DMCA was designed as a mechanism for rightsholders to remove infringing content from platforms without suing anybody.  The premise was that innocent users will inevitably upload material that isn’t theirs; the rightsholders will send a takedown requests; the platform will comply and remove the infringing material; and that would be the end of the matter in most cases.  BUT, if a user files a counter-notice asserting that the takedown was made in error, the user is well-advised to know what he’s talking about because the only option left to the rightsholder at that point is to take legal action against the allegedly infringing user.  

As discussed in the past, when the rightsholder is a small creator with limited resources, the counter-notice procedure can serve as a disadvantage because litigation is very costly and not all counter-notices are valid.  But when the rightsholder has resources—and especially if that rightsholder happens to representing the Estate of Prince!!—a lawsuit will be forthcoming unless the counter-notice is truly on solid ground.  Habib’s ground was not merely squishy but was a swampy marsh filled with half-baked notions about copyright law—a classic example in the Don’t Column for YouTubers and other users of creative works.  

Your Opinion About What Copyright Law Should Be Won’t Help

I don’t know if Habib was represented by counsel, be he ought to have advised to shut up and apologize.  Still, the reason I thought this case worth mentioning is that the defenses argued do resemble the kind of assumptions about copyright that one sees in the digital ether all the time.  For instance, Habib apparently noted that Prince’s copyrights do not cover the live performances at the concerts, which is true, except that his capturing and uploading said performances is called bootlegging. He likewise offered his own legal theory that he is the only copyright owner of the videos—as if that ownership somehow extends to Prince’s music and performances as captured in his recordings.  

Little surprise of course that Habib also attempted a fair use defense without a net, positing that his videos are “transformative in nature because [he] specifically chose the vantage point to record from and alternated between shots of the performance and reactions from the crowd.”  He also argued that capturing banter from the crowd and adding commentary on his channel like “AMAZING” rendered his use “transformative.”  Both crazy and far from the mark on fair use, these amateur theories are typical of the kind of post-Lessig “remix culture” confusion that still gets users into unnecessary trouble.  

I think my favorite among Habib’s fair use defenses (under the third factor considering amount of the work used) is described in the Court opinion thus:  “Habib argues that the third factor weighs in his favor because his videos, in aggregate, add up to ‘approximately 17 minutes” of run-time, which he contrasts with the “approximately 6 hours’ total of the two Prince concerts he attended.”  By that logic, why stop with a mere 6 hours of concert time?  Why not contrast those 17 minutes against Prince’s entire career until Habib’s videos represent some fraction of a percent of Prince’s oeuvre?

Because that’s not how copyright law works, and it is certainly not how the third fair use factor works.  This prong of the defense looks at the amount and substantiality of the use of a single work and weighs that use in context to the purpose of the use assessed under the first factor. How large the author’s catalog, how long his career, or how much money he has earned to date has no bearing on these considerations.  Habib should have been restrained for his own good from making such an off-the-mark defense; nevertheless, his meanderings are typical of the general assumption that copyright enforcement is somehow not implicated (or is automatically mitigated) by the fact that the infringer is apparently “small potatoes” in the scheme of things.

Don’t be like Habib.  Do not invent legal theories based on a smattering of blogs (not even this one), and do not file DMCA counter-notices without a very solid argument that your right to use the work is covered by the exceptions in copyright.  And those cautions go double if the claimant happens to be the Estate of Prince!

The Cox $1 Billion Copyright Damage Award is Not as Big as You Think

When it was announced last week that a jury awarded the major record labels a one billion-dollar-damage award in its copyright infringement case against COX Communications, certain anti-copyright voices were predictably shrill in their astonishment at such a stratospheric number.  Specifically, the plaintiffs represented by the RIAA were awarded $99,830.29 per infringement of just over 10,000 songs, which is actually less than the maximum statutory damage award of $150,000 per infringement.  

Regardless, the big price tag prompted Mike Masnick at Techdirt to do his shrieking mandrake bit (from Harry Potter), describing statutory damages for copyright infringement as “crazy,” “messed up,” and even “unconstitutional.”  And because comment threads are what they are, one reader at that Ministry of Disinformation opined, “the fact that .50-1.00 dollar [sic] songs magically become worth just under one-hundred thousand each simply highlights just how utterly insane copyright law is.”  

I’m not eager to pick on some anonymous commenter who does not appear to have a rudimentary knowledge of what he’s talking about; but then, many people do think Masnick knows what he’s talking about, which is one reason all this whinging nonsense seeps into public perception.  So, let’s review what Cox Communications did in this case; what statutory damages are for; and why the retail price of an individual song (or DVD, or movie ticket, or whatever) has nothing whatsoever to do with damages that may be awarded in a lawsuit.

Cox Was Not Merely Lax in Complying with the DMCA 

The Digital Millennium Copyright Act (1998) provides a liability shield (the “safe harbor”) to internet service providers whose customers use their services to commit copyright infringement—but only if the ISP meets certain conditions.  One of these conditions is that a service provider must have a policy in place whereby repeat infringers eventually face account termination for refusing to cease their infringing activity after receiving warnings sent by the provider. Separately, any party that materially contributes to a form of actionable conduct (including copyright infringement) may be held either civilly or criminally liable for the conduct.

Although the DMCA statute does not mandate how a “repeat infringer policy” must be structured, it was proven in the precedent and related case BMG v. Cox, that the defendant implemented a “thirteen-strike” policy, after which Cox still avoided account termination and was further shown to have taken affirmative action to avoid “knowing” about the scope of infringement claims it was receiving.  For instance as the record labels’ complaint states, “Rather than working with Plaintiffs to curb this massive infringement, Cox unilaterally imposed an arbitrary cap on the number of infringement notices it would accept from copyright holders, thereby willfully blinding itself to any of its subscribers’ infringements that exceeded its ‘cap.’”  [Emphasis added]

In his post, Masnick sweeps the evidence proving Cox’s “willful blindness” under his own invented narrative in which Judge Liam O’Grady of the Virginia Circuit Court simply “does not like the internet,” set in a world in which rightsholders expect ISPs to “wave magic wands to eliminate piracy.”  That’s all very cute and distracting, but what Masnick is really suggesting is that he and others think the liability shield for ISPs should be unconditional; that no internet user should ever face account termination for any reason; and that statutory damages for contributory copyright infringement—especially to the tune of a billion dollars!—are purely functions of greed on the part of the rightsholders.

Those are opinions that copyright critics are free to express and argue on the merits if they can, but I would remind them and everyone else that it was the ISPs themselves (originally AT&T, Verizon, et al) who proposed the “safe harbor” provisions (Section 512) of the DMCA in the late 1990s; and one of the premises upon which they argued this cause was the fact that they were technologically capable (without the use of magic wands) of substantially mitigating copyright infringement on their platforms.  This promise to use the tools at their disposal to collaborate with rightsholders was part of the deal that earned them the safe harbor in the first place—a bargain that has never actually been fulfilled.  

According to the evidence presented in BMG (which also controls in the subsequent suit by the labels), Cox clearly made executive decisions that went far beyond Masnick’s flabby description that the ISP did “not adequately follow its own repeat infringer policy,” as though the conduct at issue were a mere lapse in maintaining compliance, rather than one of engaging in non-compliance as a matter of company policy.  One email entered into evidence written by the former head of Cox’s Abuse Group stated, “Fuck the DMCA,” which appears to characterize the attitude that caused the ISP to lose so badly in these suits, and also why statutory damages are actually essential when giant players like this are involved. 

A Billion Here a Billion There

Especially where major corporate entities are engaged in any kind of wrongful conduct, it is axiomatic that if damages awarded in litigations are not punitive, the prospect of further legal action can be factored into the cost of doing business and will, therefore, have no effect in correcting the underlying harmful conduct.  Yet, bizarrely, Masnick points to the fact that the RIAA made a little under $10 billion in 2018 as a rationale for describing a damage award one-tenth that size a form of insanity.  This is no less naïve than the aforementioned Techdirt commenter, who seems to have no frame of reference at all for how the law actually works.  Damage awards in a wide range of litigation are not based solely on recouping the “street value” of the estimated financial loss to a plaintiff.  This would never do as a form of justice.

Take this subject out of copyright law for a moment and imagine a man who is maimed as the result of negligence by some corporation.  If he can no longer work as a janitor, should his damage award from a lawsuit be limited to his annual janitor’s salary multiplied by the number of years he can be expected to live?  Though many might prefer such a cold and narrow remedy, it would neither deliver adequate justice to the injured party nor satisfy society’s compelling interest in punishing the corporation for its negligence severely enough that it would incentivize remediation of the harmful conduct.  Damage awards that exceed these parallel aims may be held by a court to be excessive violations of due process (hence Masnick’s allusion to constitutionality); but is the Cox award actually excessive in context?

Cox has about six million subscribers.  If just 20% of those customers are chronic users of pirate sites—this is below statistical piracy averages—that would be roughly one million customers whom Cox could potentially be required to warn and possibly cancel under the provisions of the DMCA.  This subscriber base is worth around two-billion dollars in regular access fees each year,* which gives us a rough idea of the kind of revenue an ISP like Cox may be seeking to protect by engaging in “willful blindness” with regard to its consumers’ scope of infringement.  

So, if we consider that one-billion dollars is one half of one year’s revenue from about one-sixth of Cox’s total customer base, this damage award begins to look like what a damage award is supposed to be—painful enough to effect change in the defendant’s (and related providers’) behavior, but not wildly out of scope with the business dynamics in the circumstance at issue.  Or we can do the math in reverse and even reduce the chronic piracy number to 10% of Cox’s users (i.e. one-billion in revenue per year), and a one-time fine of one-billion dollars is not quite as madly disproportionate as it looks in the headlines.  

Masnick is not wrong to allude to the fact that a damage award can be unconstitutional, but he is wrong to imply that statutory damages are inherently unconstitutional, or immoral, just because he and his friends do not like (or seem to understand) copyright.  People are free to hate the RIAA or Cox or both, but if they’re not willing to unpack any of the pesky details in these cases, then the simple, objective story here is that two different juries concluded, based on evidence, that one big-ass entity willfully harmed the interests of other big-ass entities; and this does tend to result in what looks like big-ass money changing hands.  And there is nothing all that crazy about it.   

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*Average bill of $120-160 times 1 million.