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Don’t Start Copyright Battles You Don’t Understand

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!

© 2020, David Newhoff. All rights reserved.

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