DMCA HEARING IV – Contemplating Fair Use

With the first three DMCA review hearings before the Senate Subcommittee on IP, it was fairly easy to identify the salient matters most likely to survive beyond this inquiry period and become part of the substantive debate on possible legislative revision. For instance, the need to more clearly define constructive, or “red flag,” knowledge in Section 512 is a recurring theme, at least from the rightsholders, and it is a problem that is at least conceivable as a legislative fix.

But in regard to the most recent hearing, held on July 28, it is little tougher to make an educated guess as to what may come of it. And this is partly because the topic itself is a tricky one that inevitably spills over into matters not directly pertinent to the DMCA. The title of the panel is How does the DMCA contemplate limitations and exceptions like fair use? And although Professor Jane C. Ginsburg of Columbia Law School answered that question about as directly as one could—outlining the ways in which Section 512 “accommodates” fair use, and discussing the efficacy of same—my general takeaway from hearing overall was that it seems pretty difficult for any legislative fix to alleviate the tension between DMCA and fair use.

Keep in mind that the DMCA was a deal hammered out by very large, corporate interests. The online service providers (OSPs) at that time, mostly major telecoms, wanted immunity from civil suit for the copyright infringements users would inevitably commit. The notice-and-takedown provision of 512 was the compromise solution for rightsholders to remove those infringements, and the counter-notice provision was created in order to restore material taken down in error.

While it would be wrong, without supporting evidence, to assert that Congress never contemplated nuanced, “close calls” like fair uses in 1998, it is generally undisputed by all parties that Congress did not fully anticipate the scale and speed at which copyrighted works would be uploaded to online platforms over the past 22 years. Let alone uploaded repeatedly by multiple users, or the monetary value of all that infringing activity to a major platform owner. Consequently, it seems reasonable to conclude that Congress likewise could not quite have imagined a digital landscape in which tens of thousands, if not millions, of individual rightsholders and users would be expected to become literate in the fair use doctrine.

Whether this also means that Congress expected that there would more often be fact-based incidences of error in takedown notices (e.g. wrong party, wrong material, non-copyright complaints, etc.), we cannot say for certain, but these are the type of error that require no education in fair use, or any other subjective legal doctrine, in order to file a valid counter notice. Although 512 may not have been written with individual, lay users in mind, it is certainly the case that independent creators and users of works have long been left to fend for themselves, filing their own notices or counter-notices, and trying to understand fair use—a body of judge-made law about which judges disagree with some frequency.

Fair use, as I will soon discuss in greater detail with regard to Google v. Oracle, is a consideration of both fact and law, and if its principles can be slippery for courts and attorneys to hold onto, it can certainly be tricky for the average rightsholder or user. Meanwhile, amid the general chatter on this subject, OSPs, digital rights groups, and users tend to complain that fair uses are removed all the time, while rightsholders complain that users make erroneous fair use claims all the time. And without question, both groups are correct at least some of the time. Neither independent rightsholders nor users—and certainly no parties acting in bad faith—can be counted on to be “right” about fair use all of the time, least of all through the constrained mechanisms of the notice/counter-notice provisions of the DMCA.

Because the committee asked a difficult question, it was not surprising that the witnesses covered a lot familiar ground that, while important, is either not specific to fair use or not specific to the DMCA. For instance, lead counsel for the National Press Photographers Association, Mickey Osterricher, described various ways in which the “whack-a-mole” problem does almost immediate and lasting harm to the value of news photography and video. This is an archetypal failure of the DMCA’s takedown provision to protect individual authors, and while it is not directly connected the inquiry into the contemplation of fair use, it is a problem often exacerbated when users make overbroad or erroneous assertions of fair use in their counter notices.

For instance, Osterricher’s reference to the devaluation of photojournalism, through unlicensed copying and distribution online, is related to a fair use question that was raised in the hearing about the use of works by political campaigns or advocacy organizations. Although attorney Matthew Sanderson, in his testimony, referred to these examples as “paradigmatic fair uses,” that may be a bit overstated. If the owner of a photo sends a takedown notice targeting a campaign video that contains her image, this could be a wrongful takedown targeting the candidate rather than a copyright infringement, but it is more likely to be a proper takedown targeting an infringement, independent of the author’s feelings about the candidate. Or, if the work being used is strongly associated with its creator(s) identities, like a famous song, there is the added dimension of coerced speech, which is potentially more serious than copyright infringement alone.

All of that is by way of saying that a review of DMCA’s mechanisms cannot easily hope to reconcile a lot of complex (often fraught) fair use questions, which will always be a case-by-case consideration. In the meantime, though, GRAMMY-winning, gospel singer/songwriter Yolanda Adams, in her testimony, did offer an old-fashioned, low-tech solution to many of the conflicts that arise between artists and political groups:  ask permission. “Musicians run the spectrum of political views,” she says. “If candidates want to use music in their campaigns, work with us – the artists and songwriters – to find the right match.” This is solid advice that users other than political operatives should strongly consider.

In fact, the low-tech (i.e. human) solution would probably alleviate a lot of the tension that exists between rightsholders and users, and perhaps loosen some of the tension between the DMCA and fair use. If I had to guess, I would say that rightsholders have two major problems when it comes to this part of the discussion. They suffer most acutely when professional users—be they political campaigns or ice cream companies—make use of works without license; and they suffer broadly when the major internet companies, through their advocacy networks, promote an expansive rhetoric about the fair use doctrine, resulting in even well-intended users making erroneous fair use assumptions. This also happens to get users needlessly sued, by the way.

If we return to Osterricher’s advocacy of visual journalists, appropriations of these works will invariably comprise at least some users—both professional and non-professional—who assume that because they are engaged in helping to disseminate “news,” their uses of unlicensed images are naturally fair uses. Many different types of users chronically fail to recognize that those exemplary terms named in Section 107 of the law (e.g. “news reporting, teaching, parody”) are all subject to conditions and considerations that further refine the terms within the intent of fair use.

At what is arguably the opposite end of the spectrum, it was easy to be sympathetic to musician Rick Beato’s testimony when he described his music education videos on YouTube. For instance, he mentions performing ten seconds of a Beatles song in order to teach viewers how the piece is constructed, and he cites this as a typical example of a video that may be targeted by a large rightsholder using automated systems to identify unlicensed uses of their musical works.

Beato’s description strikes me as fitting well within the spirit of fair use, if not the application of the exception to date. Historically, a fair use for teaching applies to physical classroom settings. But as recent events have underlined, we may need to broaden our definition of “classroom” to the virtual learning environment, and it does seem plausible that fair use could embrace the kind of teaching Beato does on his YouTube channel.

Having said that, though, once we expand the “learning environment” to the internet, we likewise expand the aforementioned confusion that already exists among even well-intended users of works. The word teaching will be defined too broadly in the mind of many users. In 2015, I wrote about a friend who made this very mistake, presuming a fair use of some photographs because she thought of her blog as “educational.”

It seems to me that there may be solutions to the Beato example that could exist parallel to the DMCA. For instance, a registry of channels that intend to consistently use works in a fair use manner so that the major rightsholders can whitelist these channels? And this would not prevent auditing the channels for compliance. The copyright critics may gasp, of course. A user should not have to seek permission for fair uses! In principle, that’s true, but in reality, for every channel like Rick Beato’s, there are thousands of YouTubers who are merely infringing, full stop. And we need Google-scale solutions for Google-scale problems.  

Relatedly, Professor Ginsburg endorsed, or at least alluded to, the possibility of an alternative dispute resolution function within the mechanisms of 512, designed solely to resolve fair use questions. This echoes the USCO in its report on Section 512, published this May, though is not clear whether an ADR provision specific to DMCA would be seen as redundant to the provisions of the CASE Act, if it is ever passes.

Regardless of the CASE question, it seems that Ginsburg and others are looking for solutions to address the conflict inherent to the time period after a counter-notice has been filed to restore allegedly infringing material. At that point the rightsholder must either prove he is taking legal action against the respondent, or the material will be restored within 10-14 days. “That is a tight deadline for rightholders, but potentially a devastatingly long one for fair users,” Ginsburg stated.

So, it is understandable why one might wish for an ADR mechanism to at least provide guidance on the probability that a use is either a fair use or not as a step prior to issuing a takedown. How exactly one harmonizes this persnickety area of U.S. law with global platforms is a question I cannot answer, though again, Ginsburg recommended that Congress monitor the efficacy of newly-passed provisions in the EU, where some of the largest platforms will be required to preclear rights before hosting user-generated works. Although labeled the “censorship machine” by European critics, the provision, Article 17 of the Single Market Directive, passed into law in 2019, but not yet into practice. And the likes of Google are far from done fighting compliance. So, we’ll see what happens there.

In case you can’t tell, I’m pretty skeptical that there is much Congress can do to better harmonize fair use and the DMCA, though I do believe there is much that can be done to both tweak the mechanisms in DMCA and mitigate bewilderment about fair use, and this may result in better balancing the two. Above all, the major platforms that have reaped billions in ad dollars while hosting infringing material, as it ebbs and flows across their platforms, have often camouflaged their pecuniary interests by claiming to defend fair uses on behalf of their users. 

But fair use cannot be so easily generalized. And if a platform like YouTube cannot, under the terms of the DMCA, be held responsible for monitoring its site for infringements, how can it possibly quantify the number of fair uses on the same platform? Hence, it seems that fixing the gaps in 512 where platforms have managed to slip through congressional intent to impose some burden (like constructive knowledge) may have the added benefit that these same companies will devote less energy toward expanding the fair use doctrine until it swallows copyright entirely.

© 2020, David Newhoff. All rights reserved.

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