There are several aspects to this week’s 9th Circuit Court ruling in the “Dancing Baby” case a.k.a. Lenz vs UMG. Some of the language used by the court will cause a stir among legal experts as to whether or not this decision lays a foundation for rewriting fair use doctrine. But we have a long way to go on that matter, so whatever the Internet cheerleaders are saying about that this week is premature and probably misleading. Still, I’ll let the legal experts take on those larger implications, about which there is much to discuss — as indicated in this post by Devlin Hartline at the Center for the Protection of Intellectual Property. (See also Jonathan Bailey’s piece at Plagiarism Today.)
In practical terms, what the ruling likely does mean for independent creators in the present is that they may feel even more confused about fair use than they already were, and they will have greater fear with regard to enforcing legitimate infringement claims, at least via the DMCA takedown procedure. And this is what truly galls me about the ruling and all the crowing about it: the pretense that this a victory for the little guy over the big, bully corporation. Because in reality, this ruling may further disenfranchise individual creators while probably doing very little for general users; but it does at least appear to move the ideological needle toward legal conditions that favor the biggest corporate bullies in the room. So, bravo, EFF! You’ve won at least a partial victory for the underdog we call Google. First some basics…
Organizations like the Electronic Frontier Foundation and Public Knowledge have succeeded in convincing the public that the DMCA notice-and-takedown process is rife with abuse — that copyright holders are constantly stifling free speech on platforms like YouTube by taking down videos without bearing any burden of proof that an infringement even exists. In part, this perception is fostered by the natural circumstance that it will always be the large, corporate rights holders who send out the majority of DMCA notices — in the tens of millions — and so it is always easy to paint the NBCUs, Sonys, UMGs, Disneys, etc. as the big, bad guys trying to stop all the fun, and perhaps even chill political speech and criticism on the Internet. Then, along comes a case with the perfect blend of narrative elements — a mother’s personal video, a cute dancing baby, the reclusive artist Prince playing in the background, and a large corporation issuing a takedown notice — to convince people that legal doctrine is in dire need of revision. So, the EFF spends nearly eight years (so far), litigating on behalf of Mrs. Lenz, presumably in the name of all the other users out there just like her.
The DMCA notice-and-takedown process is a poor remedy for creators today — one that is essentially available only for corporate rights holders, who can afford costly enforcement departments and software to comb the web for their assets. And even for these entities, it’s an exercise in frustration as infringing posts reappear as quickly as they are removed. For individual rights holders, like indie musicians or filmmakers, DMCA notice-and-takedown is truly spitting in the wind because, contrary to what the EFF tells you, the volume and rate of infringement dramatically outweighs all capacity to use DMCA as an effective remedy, let alone provide much opportunity to purposely abuse the system. As an example of the kind of ratios we’re talking about here, even a large entity like the MPAA sent out 25 million notices in a six-month period in 2013, and these resulted in just 8 counter-notices (or .00032%). And in all likelihood, those 8 represent mistakes or judgment calls, but not willful or negligent abuse of the system.
And those counter-notices are a part of the system. The rights holder sends a takedown notice and, if the user/uploader feels the notice is in error, he/she may send a counter-notice to have the material restored on the platform. This is exactly what happened to Mrs. Lenz’s dancing baby video, which was down for about 30 days (her first counter-notice failed or it would normally have been ten days), and UMG did not file suit in response to the reposting of her video. Instead, the EFF, on behalf of Mrs. Lenz, sued UMG despite the fact that the DMCA notice and counter-notice process worked exactly as it is designed to work.
And, while the EFF may claim that this case is about seeking to remedy DMCA abuse in favor of us users, we should keep in mind that there have been far better examples of actual abuse of DMCA than Lenz, but this story just happens to provide an ideal PR platform from which to launch a campaign to rewrite copyright law (namely fair use doctrine) itself. But rewrite it for the benefit of individuals or for the benefit of the Internet industry? That’s one question about this story I think people should be asking.
The salient headline from the court, about which much hay shall be made, is that a rights holder must now “consider fair use” before issuing a takedown notice. This may have the ring of balance and reason to it, but in practical terms it’s pretty vague. The EFF’s contention has been that UMG willfully neglected to “consider fair use” when issuing the takedown notice on the Lenz video; and if that sounds like a hard thing to prove, it’s because it basically boils down to mind-reading. The logic apparently being applied is that the Lenz use is so obviously fair, that UMG could only have been neglectful in this case. What this court said was, yes, a copyright claimant must “consider fair use” before sending a takedown notice under DMCA and that a user like Mrs. Lenz may sue for wrongful takedown accordingly. But, the court also stated that a plaintiff in such a litigation bears the burden to prove that the defendant “never considered fair use” prior to issuing the notice. Moreover, the court rejected EFF’s efforts to define “consideration of fair use” objectively, stating instead that such consideration is subjective. In other words, the rights holder must “consider fair use” but he need not be particularly good at it. And this is actually good news, because if the legal professionals can argue about the application of this doctrine, how are a bunch of artists and general users supposed to know what the hell they’re doing?
For instance, take the implications of this ruling out of the realm of the EFF vs a big player like UMG; and consider the circumstance of an average user uploading a video that contains the work of a small, independent creator. First, a potential litigation between these two parties becomes an even more ephemeral exercise in the aforementioned mind-reading (i.e. how does the plaintiff prove that a non-attorney defendant never considered a legal doctrine that has no bright lines in the first place?). But second, it is a ruling that offers no new, practical remedy for either rights holders or general users because most people in either group cannot afford to engage in federal litigation. So, that brings us back to the notice/counter-notice system we have now.
But, independent rights holders, who’ve nearly given up trying to use DMCA as a remedy anyway, may now be just a little more reluctant to enforce their rights via this mechanism, especially if their work is used by an entity that can actually afford to go to court when the rights holder cannot. For example, if Sally Musician sees that Bobby324 has uploaded a video using her song that she wants taken down, she’s probably not going to be too worried that Bobby324 can take her to federal court with a wrongful takedown claim based on this ruling. But what if the Church of Scientology, which is rich as Croesus, uses Sally’s song in an evangelical video, and she freakin’ hates it; and they didn’t ask permission or pay for a license? Now, even if she cannot afford to sue, she might also be afraid to use DMCA just to take the video down because this behemoth entity can easily afford to take her to court and claim that she never considered how their “educational message” might be fair use. Yeah, it’ll be a bullshit claim, but she’s still taking a risk of being sued by a big entity just for seeking a non-litigious remedy in the first place. So, how exactly is that a win for the little guy?
Should Mrs. Lenz’s video have been left online in the first place? Probably. But we’re also hardly in Erin Brockovich territory here. Nobody poisoned the groundwater. A video was taken down and then went back up. And considering how often the clarion call for “balance” is sung from the valley of silicon, it is quite something to consider that the EFF is now in a position to potentially collect what must be millions in legal fees from UMG, all because a woman had a video taken off YouTube for a month.
Of course, there’s a principle at stake, right? And that principle is supposed to be free speech. I could do a whole other post on that line of reasoning alone; but again, there are concrete examples of purposeful abuse of DMCA to attempt to silence criticism, etc. and the EFF didn’t invest these labors in any of those cases. So, the principle here is not exactly clear. I think what is clear is that the Internet industry is gunning for fair use itself, hoping to broaden, or even reverse, the doctrine as a limited set of exceptions to copyright protection. The court didn’t exactly let them go there; and as I say, we’re miles from knowing what this ruling may mean in the big picture. In the meantime, it’s business as usual on platforms like YouTube, with individual creators perhaps slightly more skittish about asking people to please not steal from them. Well done, EFF.
© 2015, David Newhoff. All rights reserved.