Hart asks why EFF still dancing in Lenz v UMG.

I don’t know about you, but I’ve had my Internet service cut out from time to time, and I’m strongly considering suing my ISP for periodically violating my right to free expression.  Sound absurd?  Good.  Then, I draw your attention to Terry Hart’s recent update in the case known as Lenz v UMG.  What happened was Mrs. Lenz, a grandmother, uploaded a video of her dancing grandchild to YouTube, and an automated system detected the Prince song “Let’s Go Crazy” playing the background, which triggered a DMCA takedown notice from Universal Music Group.  It was an error — music playing incidentally in the background like that would often be fair use — but I’m happy to report the Lenz clan have suffered no psychological damage stemming from the six-week period when the video was offline.  That was six years ago, but as Hart reports, the Electronic Frontier Foundation, as the saying goes, is still making a federal case out of it.

The EFF and other forces aligned against artists’ rights like to claim that malicious DMCA notices are rampant, but as Hart has pointed out before, if this were true, why pick a fight over a case as weak as Lenz?  Answer:  because this isn’t about rampant abuse of DMCA (or certainly about any harm done to Mrs. Lenz), it’s about establishing greater burdens for individual creators to protect their works online.  If it weren’t about that, who’s paying EFF’s lawyers to pursue this for all these years?  Hint:  Not the Lenzes.

“So we can ask two questions. Do we want to see noninfringing content become temporarily inaccessible at certain web sites? Of course not. But, at the same time, is a greater than 99.8% accuracy rate acceptable, especially when you’re dealing with tens of millions of notices a month?”

See Terry Hart’s full article here.

© 2013, David Newhoff. All rights reserved.

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  • A word to the EFF….the 90’s called and they want their “frontier” back. It’s 2013 boys, get out of the dorm room, get a grip on reality and join the here and now.

  • Music playing in the background is not prima facie a fair use. Is it ‘for purposes such as criticism, comment, news reporting, teaching… scholarship, or research’? I don’t think so. When I queried this in a comment on Terry Hart’s post he replied that the substantive question of fair use has not been decided in the Lenz case. In a dancing baby video the point might seem de minimis, but what if (say) a film has a scene in which a recognisable song is playing on a radio or juke-box in the background?

    • You’re right, David, and it’s a careless phrasing on my part that I’ll amend. In fact, one of the central points Terry is making is that there really is no such thing as prima facie fair use as the EFF wants to imply. Thanks.

    • I actually wanted to say the same thing – and almost made a similar comment over at Copyhype – the characterisation of the Lenz video as fair use feels… wrong.

      For a start, it’s not really a “use” as such. Fundamentally, the video is about a baby dancing – not about a baby dancing to a particular song. The song was on the radio, it could have been anything. I don’t think Mrs. Lenz would care either way and the video would have worked (in its primary purpose in documenting a bit of a young person’s life) without any sound at all.

      I think the correct characterisation would be de minimis in this case and the result prior to the lawsuit (counternotice filed, video reinstated) is how these things should be done. All of this without prejudice, of course.

      It seems to me that fair use – as a legal doctrine – actually requires a pretty high standard. High enough to say that the social good outweighs the rights of individuals. The availability of the Lenz video – or lack thereof – is a social non-issue. It is purely a private matter for the Lenzes. We might forward a hypothesis that people’s ability to upload home video to YouTube meets the standard, but that fails when we consider that YouTube can unilaterally take down anything for no reason whatsoever and nobody has any recourse against that.

      • @ Faza

        I’d disagree. Unless the argument that incidental background music is fair use (or fair dealing in the UK) is accepted, documentary makers are going to be in an absolute minefield. As are journalists doing vox pops. Because those won’t necessarily fall under the news reporting clause. Thankfully, this is the stance the courts seem to be generally taking on the issue. Do you really want to see a situation where an interview in a pub has to be spiked because of what happens to be on the jukebox? This isn’t in any way a radical position; even the MPAA is in favour of this interpretation.

        On Hart’s article more generally, I’m glad to see this being recognised:

        There are certainly examples of bad actors sending takedown notices for sites or content that is not infringing or likely not infringing for purposes of harassment, suppressing criticism, or stifling competition. This is obvious abuse, and this abuse reflects poorly on the vast majority of copyright owners who don’t abuse the DMCA process.

        The issue is that, while I agree that the vast majority of DMCA notices are legal, the ones that aren’t are disproportionately being used against critics/reviewers. And considering how unlikely any serious blowback from that kind of abuse currently is, I don’t see the problem getting better. Quite the opposite.

        Hart does at least propose some potential solutions for this.

        I suspect voluntary regulation is a no go. The companies and individuals most likely to engage in this kind of sharp practice are the same ones who really aren’t going to be willing to sign up to this in good faith.

        The small claims suggestion is more workable. As long as the court takes abuse of DMCAs as seriously as it does copyright infringement, which I think is a reasonable stance to ask for. (If, as has been argued, this abuse is negligible, only a handful of defendants have anything to worry about).

        Ideally, I’d like to see a complete overhaul. So those obvious cases of impingement get the process streamlined so they’re no longer having to play whack-a-mole to get their content removed. And those people putting in bad faith notices get stamped on hard. Both should be taken equally seriously with similar penalties- the vast majority of stifling of criticism is being done for commercial motives so it should be treated with the same gravitas as commercial copyright infringement. (Yes, in extreme cases, that should include penal sentences).

        However, I don’t live in a world where any of those solutions currently exist. So I hope Universal get hammered on this. Because such a high profile case that’s what’s in the interests of journalists, especially critics. Not because the Lenz case itself is that vital. But pour encourager les autres.

        Apart from anything else, critics are going to have to stick together to look after our interests on this one. Because we’re hardly popular with a lot of artists.

      • Fundamentally, Faza, I believe Sam is correct that incidental music picked up in the background is generally fair use and should be for the reasons he cites. This is why UMG’s takedown is what we rationally call a mistake and the reason the video was restored. To David’s point earlier, of course, there’s really no such thing as prima facie fair use, which is part of what Terry is getting at. A rights holder has to feel there’s a problem and the user has to want to argue fair use in order to get a judgment declared in his favor. This appears to be the central legal problem with the EFF’s pursuit in Lenz, that they seek to establish additional burden on the rights holder to “consider fair use” as though it’s a clearly defined guideline, lest they find themselves guilty of abuse of the DMCA and potentially liable. This is what is so insidious about this case. There really are bad actors who use DMCA takedowns for the purpose of censorship or even extortion, and these people deserve to be punished; but they do not represent the majority use of DMCA. Still, rather than take on the really sleazy (and not nearly as headline-grabbing as Prince) cases, the EFF takes a garden-variety mistake and seeks to reshape it into a precedent-setting landmark. If they were to prevail, rights holders would more easily be lumped in with the real abusers.

      • Nevertheless, I stand by the assertion that de minimis is the way to go here. The fundamental result is the same – you cannot get sued for infringement – but the underlying reasons are fundamentally different.

        In the pub example you bring up, Sam, the fact that there’s music playing on the jukebox is just that: incidental. It is not fundamentally necessary to the work being created. In such a case, the court can rightly rule that the matter is trifling and thus not actionable. However, since the fact there was any music in the background at all was not something the intereviewer had planned out and largely irrelevant to the material being assembled, we’re not dealing with a “use” as such and it seems a bit silly to consider its fairness.

        I do agree that there are abuses of the DMCA, aimed at stifling criticism, but that’s what 17 USC § 512(f) is for. Bear in mind that a DMCA notice is only a small hurdle for legitimate material – all it takes is a counternotice by the uploader (17 USC § 512(g)). At that point, the ball is back in the rights holder’s court and their only option past that point is to sue for infringement – which may well give rise to liability under § 512(f).

        The point is that playing notice-counternotice is a simple and very cheap affair. The required contents of the counternotice are simply who you are, the material that is the subject of the counternotice and where it was prior to being taken down and a statement that you believe that the material should not have been taken down. You don’t even need a lawyer to draft such a notice and once you send it to the service provider, they are under obligation to reinstate your material.

        Granted, a lot of people may feel uneasy about such a show of defiance, but if you can’t take the heat, get out of the kitchen.

  • @Faza

    Yes, but that currently rewards abuse of the DMCA system. Video games journalism is the prime example of this. Because the first week after a game comes out is crucial, getting a takedown of a critical review for four days is actually massively advantageous, especially if the reviewer has a significant readership.

    This just strikes me as one of the things that needs to be looked at if (as is often suggested) the current way DMCA is operating is given an overhaul.

    Sure, abuse of the safe harbour provision is a real issue. But if we’re tackling that, surely we can also look at abuse of takedown notices at the same time. For DMCA to be taken seriously, it needs to be as fair as possible, rather then just prioritising the interests of a single interest group.

    • Fair-use for the purposes of criticism is already covered. Everyone in the game knows that.

    • I’m sorry, Sam, but frankly I don’t see what a publisher’s first week advantage has to do with anything.

      It’s a dirty trick, to be sure, but what does that have to do with critics? They aren’t in competition with game publishers (or at least they shouldn’t be). Does it really matter to the reviewer that a critical review is absent for a short while that much?

      I can see how that can be seen a lost traffic (and ad revenue) issue, but in that case the reviewer should sue the publisher for incurred losses under § 512(f). If, on the other hand, the reviewer does not see this as sufficient cause for legal action (perhaps because there is too little demonstrable harm to warrant the costs of filing suit), then I cannot see why I should be concerned about it.

      The thing about the DMCA, as written, is that it is actually pretty well balanced. The ISPs have widely-defined safe harbours, the copyright holders have a mechanism for notifying ISPs of possible infringements they may not have been aware of and the users have a counter-mechanism to reinstate erroneously removed material – all without the need for legal action.

      For all its benefits, however, it is probably the most abused piece of legislation at the moment, precisely since it can be exercised without legal action. I would like to see misrepresentation in DMCA takedown notices stamped out as much as the next man, but – frankly – it’s up to those wronged to sort that one out, using existing legal mechanisms. Perhaps the EFF could do something useful, for a change.

      The thing is, if people did start to sue bad actors under § 512(f) and prevailed in a couple of high-profile suits (perhaps just one), publishers’ legal departments would begin strongly advising against the practice – it’s what they’re paid to do.

      What we do get, however, is spurious claims like the one in Lenz. It’s not advancing the conversation or clearing up the legal issues one bit. If anything it can only lead to more bad case law.

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