Well, here we are again. Fair Use Week. Ninth annual. I still don’t know why this doctrine in copyright law should be observed on the calendar, let alone for a whole week carved out of Black History Month. But in 2013, some anti-copyright ideologues thought it should be a thing, so now it’s a thing. I don’t know. Wear something iridescent?
While deciding whether to write a post this year, I considered revisiting Google v. Oracle, which would be a solid candidate for the worst (i.e. most incoherent) fair use decision in contemporary copyright law. But in light of recent reports about platform non-compliance with the DMCA, I thought about Lenz v. Universal Music Group and what the Electronic Frontier Foundation allegedly “won” after ten years in that boondoggle, commonly referred to as the “dancing baby” case. I know. Lenz is so 2015, and the dancing baby himself is probably looking at colleges right now, but hear me out.
Lenz involved Universal Music Group’s DMCA takedown of a home video with the song “Let’s Go Crazy” and, as argued in this post, it was a lawsuit looking for a complaint. With a high-profile name like Prince in the mix, the EFF and sister organizations seized the opportunity to amplify general allegations of DMCA takedown abuse, even though the case itself made a poor example of actual abuse. Seeking a basis for litigation, the EFF started with tortious interference, which failed; then tried infringement of the speech right which failed; and finally landed on UMG’s alleged violation of DMCA Section 512(f).
Under §512(f), if the copyright owner “knowingly materially misrepresents” that the use at issue is an infringement, they may be liable for damages in a lawsuit. Thus, EFF argued on Lenz’s behalf that UMG had failed to consider fair use when it issued the takedown of the video, and this failure was tantamount to knowing misrepresentation of a claim of infringement.
What EFF achieved for its decade-long efforts was so much confusion in the public sphere that people often thought Prince himself had sued Lenz, and what the organization obtained in the final ruling at the Ninth Circuit was both vague and a bit troubling for independent creators. The court concurred with the general principle that in order for a copyright owner to comply with Section 512(f), they must “consider fair use” prior to sending a takedown notice. But what exactly did that mean?
Many observers in 2015, I among them, found the holding disturbing in spirit though, perhaps, less concerning in practice. The problem anticipated was that the headline about “considering fair use” would frighten individual creators away from enforcement via takedown. On the other hand, absent discoverable facts, how would a respondent in a case prove that the individual copyright owner had “failed to consider fair use” without testimony from a certified mind reader?
With a corporate rightsholder like UMG, there are discoverable records available to prove, or at least indicate, that the owner might have failed to consider fair use before issuing a takedown. By contrast, independent rightsholders sending their own notices, make a good-faith effort in their own minds without creating a document trail; and there is nothing in the statute, or the ruling in Lenz, which holds that this good-faith consideration creates a liability under 512(f). Not that the EFF, along with Google and Co., did not try to close that gap.
The EFF had argued that the notice-sender must make an “objective” consideration of fair use, which is a stricter standard than a good-faith “subjective” consideration. At the same time, an amicus brief filed by Google, Twitter, Tumblr, and WordPress, asked the Ninth Circuit to reconsider the “objective” standard issue in a relevant prior ruling (Rossi v. MPAA), arguing:
“… the more misinformed or unreasonable the copyright owner, the broader the immunity he would have from liability under Section 512(f). This reading of 512(f) would effectively encourage copyright owners to remain ignorant about the limitations on their exclusive rights under the Copyright Act because the less they know, the more leeway they would have to send takedown notices.”
That was one hell of an incendiary argument coming from an industry that built multi-billion-dollar platforms on its capacity for willful blindness to copyright infringement. The EFF and the major platforms tried to amend jurisprudence (and the intent of the DMCA) so that independent artists and creators would have to demonstrate a rigorous understanding of the law—especially the highly-subjective fair use doctrine—while rampant infringement of their works would persist beneath the shrugs of operators who claimed they cannot know what is happening on their platforms. Fortunately, the court did not go as far as EFF, Google, et al had asked.
The other headline-making victory which Lenz produced was the court’s alleged description of fair use as a “right” rather than an “affirmativedefense” to a claim of infringement. This is a doctrinal debate in which the anti-copyright crowd naturally views fair use as a right despite the fact that this distinction is at odds with one of their other favorite talking points—that American copyright law as a whole is a “creature of statute” rather than a codification of a natural right. If that is doctrine, then 107 (fair use) is no more or less a right than 106 (the exclusive rights vested in the author). Nevertheless, back in 2015, there was much rejoicing in anti-copyright tents when the court in Lenz stated the following:
Originally, as a judicial doctrine without any statutory basis, fair use was an infringement that was excused—this is presumably why it was treated as a defense. As a statutory doctrine, however, fair use is not an infringement. Thus, since the passage of the 1976 Act, fair use should no longer be considered an infringement to be excused; instead, it is logical to view fair use as a right.
As legal scholar Devlin Hartline noted in a post at the time, the Ninth Circuit was citing a footnote expressed as the personal opinion of one judge in an Eleventh Circuit case and was, therefore, not even a holding in that circuit. Further, the same footnote ended by stating, “Regardless of how fair use is viewed, it is clear that the burden of proving fair use is always on the putative infringer.” So, as a practical matter, then, fair use is an affirmative defense, which is in fact Supreme Court precedent. Moreover, Hartline recently wrote to me via email on this matter …
Thankfully, the Ninth Circuit’s reading of Section 512, which erroneously equates the failure to form a good faith belief with a knowing misrepresentation, has not been adopted in other circuits. Perhaps more importantly, Lenz and subsequent Ninth Circuit decisions make clear that fair use remains an affirmative defense under Section 107, and the burden of proof falls on the defendant claiming fair use. The Ninth Circuit’s discussion of fair use as a ‘right” thus does not change anything where it matters most—infringement litigation.
DMCA Abuse Does Persist – Just Not by Rightsholders
But why rehash Lenz during Fair Use Week in 2022? Because since that time, when the dancing baby story was exploited in an attempt to weaken what little remedy DMCA takedown offers most creators, several of the major platforms are today not even pretending to comply with their side of the DMCA bargain. Not only do the platforms continue to maintain labyrinthine, redundant notice-filing systems designed to frustrate copyright owners, but they are increasingly avoiding expeditious removal, as the statue requires.
As reported last September, photographer Martin McNeil documented the number of conflicting emails he received from Instagram responding to notices he sent to remove just one photo from various threads. Instagram complied with some notices but then alleged via email that McNeil is not the copyright owner of the same photo pursuant to other notices. This erratic conduct implies a system designed to avoid takedown and frustrate the rightsholder, and if Meta were sued for copyright infringement, this system would likely prove at discovery that the platform has voided its liability shield under the DMCA.
Similarly, Twitter now rejects most takedown notices according to a story at TorrentFreak posted in late January, and these revelations are consistent with a pattern suggesting that few, if any, of the major platforms are shielded by the “safe harbor” provisions in Section 512 because they are not in compliance with the statutory conditions. One cannot know for certain without suing these entities, which is, of course, the point: they are all too big to sue and, therefore, don’t give a damn whether they are shielded by the safe harbor.
So, as small-business creators encounter new, aggressive, and statute-violating roadblocks to discourage enforcement of the right to remove unlicensed uses of works, it seems like a good moment to revisit the extraordinary hypocrisy of Lenz v. UMG, when the EFF et al tried to change fair use precedent and place undue burden on copyright owners at the same time.
The Lenz campaign mostly fizzled as a legal matter but still made plenty of noise while it lasted. In 2018, the EFF even awarded Stephanie Lenz (i.e., themselves) its Pioneer Award for “fair use activism,” which is some purple praise for a case that barely contained an injury. If for the tenth anniversary of Fair Use Week anyone wants to hand out awards, I nominate Lenz v. UMG for outstanding achievement in the field of Anti-Copyright PR by Means of Litigation.
 This in addition to the fact that no data has yet shown that takedown abuse is rampant.
 Though even UMG’s case was somewhat unusual and not likely to be repeated.
 I quarrel with this view to an extent, but it is doctrine since Wheaton v. Peters (1834).
 The video was restored to YouTube by the DMCA counter-notice procedure, and Lenz is on record saying that she did not care much about the removal in the first place.