How the “Dancing Baby” Case Went Crazy

Last week, both the Electronic Frontier Foundation and Universal Music Group filed petitions with the United States Supreme Court in regard to what is commonly known as the “Dancing Baby” case. The “baby” in question is about 11 years old now, and for those who might not know how a mundane home video became the focus of a multi-year, federal litigation now begging the attention of the Supreme Court, let’s review …

In February of 2007, Holden Lenz of Pennsylvania was just 18-months-old when his mother Stephanie video taped him dancing to the Prince song “Let’s Go Crazy” and then posted the video on YouTube—a platform that was just six months older than Holden. Because Prince was especially guarded about all uses of his music—and was justifiably critical of YouTube in particular—the Lenz video was one of several targets added to a list of DMCA takedown notices to be filed by Universal Music Group on the artist’s behalf. The “Dancing Baby” video was removed on June 5, 2007, and according to an ABC News story published in October of that year, Lenz stated that she was initially “frightened” about having her video removed from YouTube, concerned that UMG might file suit against her, and then the fear of said litigation made her “angry.”

So between the Summer and Fall of 2007, the public version of this story had already begun to stray from the relevant facts in the case. For starters, Ms. Lenz, on her own, had immediately sent an incorrectly filled-out DMCA counter notice on June 7 seeking to restore her video. But if she were truly frighted about a lawsuit by UMG, that would have been the moment for her to proceed with caution because a DMCA counter notice can, in some cases, trigger legal action by a rightsholder. Subsequently, at the advice of an attorney friend, Lenz contacted the Electronic Frontier Foundation to better understand her options, believing at the time that UMG might have infringed her First Amendment right of free speech.

PR by Litigation

Keeping in mind that nearly ten years ago, when this adventure began, it was easier for organizations like EFF to promote the message that DMCA takedown was widely abused and, therefore, chronically chilling speech. They still promote this message, of course, but in recent years, both research data and anecdotal evidence from numerous rightsholders indicate that takedown abuse is the exception while rampant infringement without recourse under DMCA is the rule.

On June 27, 2007, the EFF sent a correctly filed counter notice on Lenz’s behalf. YouTube restored the “Dancing Baby” video by mid July, and the EFF then filed its initial complaint against UMG on July 24, 2007. From there, both the public story and the court records suggest that Stephanie Lenz became, as Stephen Carlisle of Nova Southeastern University puts it, the “nominal plaintiff” who provided an ideal opportunity for the EFF to embark on an odyssey of PR by litigation—a lawsuit looking for an injury. After all, the video itself, as anyone can see, could not be more harmless; it has an actual baby in it!

In part, what we know about the motives and strategies driving this case is due to Ms. Lenz’s own carelessness as plaintiff when she revealed enough information, via emails and social media, that in 2010, she lost her attorney/client privilege to specific portions of her communications with the EFF. The casual communications cited in the record suggest that the EFF was determined to “get” UMG for something—Lenz uses the expression “salivating over getting their teeth into UMG”—even if they had to keep changing strategies to figure out what exactly UMG had done wrong.

Shifting Rationales

Technically, the Lenz case is pretty boring. A mom had a home movie taken down from YouTube and then that home movie was restored to the platform via the DMCA counter notice procedure, which is exactly the process Congress envisioned when it wrote the statutes. Had there been no expectation of occasional error or flaw on the part of rightsholders, there would not be a statutory counter notice “put back” procedure in the first place. The fact that the Lenz video was offline for a period of six weeks was due neither to a particular flaw in the DMCA nor to any action taken by UMG.

Moreover, the extent to which Ms. Lenz felt “injured” by the removal is unclear since in one of her emails, she stated, “I don’t care if YouTube doesn’t want to host it. Not like I’m paying them.” This was reported by CNET in a February 2011 article in which EFF attorney Corynne McSherry is cited promoting the message that copyright owners are frequently “careless in sending notices” and, therefore, “interfering with free speech.”

But although Lenz stated that her initial belief was that UMG had infringed her First Amendment rights—and this story has often been referred to in the press and on social media as a free speech issue—the fact is that even the EFF would eventually concede that the temporary removal of the video did not implicate the First Amendment. This is because neither UMG nor YouTube is a state actor, and because the content of the video did not contain political speech, criticism, parody, or newsworthy content of any kind.

According to email communications made by Lenz, it appears the EFF considered a few avenues to pursue litigation, including a California State breach of contract complaint, which suggests that Lenz’s story did not immediately present itself as a constitutional or DMCA case in EFF’s mind. In fact, the initial complaint filed in July of 2007 was for “tortious interference,” which was dismissed.

Additionally, in a June 14, 2007 email to her mother (10 days before the first complaint was filed), Lenz states that EFF’s pro bono “fees” would be covered by “the settlement.” This may just be a layman misspeaking because an expectation of a settlement would be a very odd strategy for a rights advocacy organization that is supposedly taking a case on principle. After all, a settlement by the litigants generally means the court does not rule on whatever principle is being argued.

The EFF amended its complaint to argue that UMG had violated §512(f) of the DMCA, which states that a plaintiff may seek damages if a takedown notice filer “knowingly and materially misrepresents that the material or activity is infringing.” And that is how Lenz v UMG became a fair use case. A plaintiff does not have to have suffered financial loss in order to prove that an injury has been caused, but absent an abridgment of Lenz’s First Amendment rights, the EFF’s argument now rests solely on the sheer wrongness that the video was removed at all—that it was, in their words, “censored for six weeks.”

As indicated above, given that Ms. Lenz chose, in error, to investigate the First Amendment implications, and that the EFF chose to take the time to transform this minor event into a major case—and in light of the fact that the OSP (YouTube) is responsible for restoring files at its discretion—the six-week interval cannot be considered the responsibility of the defendant. In general, whatever factors result in a file being restored, either within hours, days, or weeks, are not in the control of the original takedown notice-sender; and as the UMG petition states, the Lenz video was ultimately restored via the counter notice procedure. In other words, Lenz’s and EFF’s time spent exploring both tort and constitutional violations—both of which fail—is neither UMG’s fault nor its responsibility to pay for.

Lenz Becomes a Fair Use Case

So, the only way for the EFF to argue that UMG had “knowingly misrepresented” that the “Dancing Baby” video was infringing was to prove via testimony that the company had not “instructed its employee to consider fair use” before filing the takedown notice. And that’s where we are today. In September 2015, the 9th Circuit Court of Appeals agreed that a rights holder must “consider fair use” before sending a takedown notice but stopped well short of agreeing with EFF’s assertion that such a consideration must be made based on an “objective” standard.

The EFF has tried to argue—indeed it can only argue—that a failure to “objectively consider fair use” is tantamount to “knowingly and materially misrepresenting that the material or activity is infringing.” As an amusing side note, in an early email to a friend (June 12, 2007), Lenz stated, “Mine’s not a fair use case at all.” Granted, she cannot be expected to know the law per se, but in context to the other comments and court records, this early email does seem to support the view that this entire case has been a fishing expedition—a lawsuit looking for an injury.

As argued in the UMG petition, a “subjective” standard with regard to all considerations is the reasonable and correct interpretation of the DMCA statute, which requires a takedown notice-sender to have a “good faith belief” that a use is infringing. The plain meaning of “good faith belief” is clearly subjective; and fair use doctrine is the most subjective aspect of copyright law—a multi-faceted assessment for which the precedent caselaw provides myriad, conflicting and narrow outcomes.

Hypocrisy Undermines the Intent of DMCA

So, even if the most experienced copyright attorney in the country were instructed to make an “objective” fair use assessment, she might ask how exactly this would be achieved. While it’s true that attorneys can make very solid fair use assessments—especially where precedent provides guidance—an “objective” standard applied to DMCA takedown notices would only further disenfranchise the independent rights holder who is no more an expert than Ms. Lenz was. This implies the need for counsel which contradicts the extra-judicial purpose of DMCA.

The truly galling hypocrisy here is that the indie rights holder would be expected to know with certainty when a use is fair while users remain free to infringe with impunity, and large OSPs are free to monetize those infringements on the basis that they “cannot know” what’s infringing or what isn’t. For the small rights holder DMCA is already toothless, but EFF would like to make it voiceless as well.

In Lenz, absent a ruling by the Supreme Court that fair use can be considered “objectively,” the foundation that UMG was ever in violation under §512(f)—that it “knowingly and materially misrepresented” that the “Dancing Baby” video was infringing—should fail. Consequently, the argument that any non-pecuniary injury was caused should also fail. Perhaps, the EFF will succeed in getting the $1,275 in pro bono “fees” Lenz theoretically owes the EFF for filing the counter notice in 2007, which would make this case landmark indeed—getting the Supreme Court to adjudicate a small claim.

Finally, it’s worth noting that in the same October 2007 ABC News story cited above, Gigi Sohn, then head of Public Knowledge, opined, “I think the large copyright holders believe that if they do not police every single use of their copyrighted work — no matter how benign — that somehow that will open the floodgates to massive piracy.”

Whether this observation was acutely naive or just cutely dismissive, the fact remains that over the next several years after Sohn said this, YouTube would go on to earn fortunes by hosting diluvian proportions of infringement by its users. In light of the immeasurable losses to working authors, who have almost no power under the DMCA to protect their rights, the EFF should frankly be ashamed of themselves for spending nearly a decade in federal courts fighting to protect absolutely nothing.

Are Candidates Even Talking About the 21st Century Economy?

It’s very common to encounter broad complaints saying things like, “Copyright law should not stop me from fixing or altering my technology.” Often, this generalization is made by people who don’t necessarily know they’re referring to Title I of the DMCA but who have read somewhere that copyright law prevents reverse engineering, maintenance, jail-breaking, and overall tinkering with products ranging from personal small electronics to cars, trucks, and tractors.

But as I first discussed in this post, the whole concept of ownership of many of our core products may be waning faster than these apparent conflicts with intellectual property law might ever be addressed. This transformation is highlighted by what seems to be an inexorable march toward an autonomous vehicle transportation system—a change that comes with consequences far more relevant than the matter of a “right” to fiddle with the gadgets we purchase.

With the announcement last week that the federal government officially endorses the development of driverless vehicles, it is noteworthy that no candidate running for any office seems likely to address the radical social and economic implications of this seismic shift in the transportation sector. Although I cannot bring myself to compare and contrast Donald Trump with any other prospective candidate for office, for the purposes of this post, suffice to say that between Trump’s version of trickle-down economics and Hillary Clinton’s version of focusing on the middle-class, it seems to me that neither candidate is talking about the same 21st century economy in which Wall Street is investing.

Candidates across the political spectrum keep referring to fair trade deals as a common scapegoat as a prelude to their myriad promises to “bring jobs back” to America. This is already a fallacy, pretending that we can reverse globalization through tax policy alone, or without a specific plan for investments—either public or private—that might actually grow domestic jobs. Meanwhile, VCs, Wall Street, and the tech firms are placing big bets on a more generally automated future; and nobody seems to want to talk about the jobs we are, therefore, poised to eliminate over the next decade or two. Not outsource through trade. Just eliminate right here at home.

For instance, a truly driverless future would probably wipe out a minimum of 10 million jobs, beginning with an estimated 8.5 million who work as drivers and at least a few million who work in some capacity related to the current ground transportation industry. Granted there would be jobs created in order to build and maintain a new, driverless infrastructure, but only a fraction of the number that would be lost. And equally if not more challenging is the question of whose investment would build this new infrastructure?

Let’s face it. The United States is bipolar when it comes to great building projects, which I think explains why our infrastructure is antiquated in contrast to other developed—and even developing—nations. As if to emphasize our duality in this context, it’s notable that the two eras when most American infrastructure was built happen to have been based on antithetical models. The first era was a period of unfettered capitalism, which built the foundations of the country’s industrial capacity from the mid-19th to the early 20th; and the second era was a brief period of outright socialism—the New Deal—which built highways, buildings, dams, etc. most of which is still in use today, even if it’s looking a little rusty.

Now that the Obama administration has given a federal fist-bump to the driverless vehicle—and if this does mark a tipping point when we can say this transition is inevitable—then we’re going to have to address the question of ownership (i.e. whose investment it’s going to be). Would Americans allow Google, Uber, Ford, Lyft, and Tesla (GULFT) to own the entire transportation infrastructure for the nation? Or would we build the infrastructure as a public work? Because historically, allowing private industry to make that kind of stranded investment in exchange for monopoly control has not been particularly good for consumers or innovation.

When the nation was first being electrified, there was debate over whether we should build a distributed versus a centralized system. A distributed system of smaller, co-generating plants would have been safer, more energy efficient, and less monopolistic. So, naturally we built a centralized system. This meant massive, stranded investments by the utility companies for which they could only be compensated through monopoly control of the market until those monopolies were finally busted up in the 1990s. Meanwhile, consumers (a.k.a. “rate payers”) had no competitive choices, and the utility owners had zero motivation to innovate. As a result of this legacy, the United States remains a follower rather than a leader in advancing new, non-carbon-based, energy solutions.

So, now we fast-forward a decade or two in the world of ground transportation. We no longer own cars. We hail a driverless vehicle to take us to the grocery store where the goods on the shelves have all been delivered by a driverless cargo vehicle from a distribution center serviced by hundreds of other driverless cargo vehicles. Accidents are very rare, the air is cleaner, and (in theory) consumer costs come down. We no longer have car payments or auto insurance, and the lower cost of transportation could lower the cost of goods.

But those benefits may easily be diminished if we haven’t considered how to address the massive shift of 10-plus million people formerly employed in ground transportation-related jobs. Plus, we now have a more thorough consolidation of transportation service than the railroad monopolies controlled at the turn of the 20th century. Every vehicle trip is now part of a vast, networked system that relies very little on human labor. So who owns that system? We have to assume that the capitalists currently investing in the model expect they will own it. That’s a lot of control to give to GULFT.

Wall Street, Silicon Valley, and now the Obama administration are all projecting a future in which the transportation sector simultaneously sheds millions of jobs and centralizes control of the lifeline of the entire nation—and not one candidate from any party thinks this is significant enough to talk about. Instead, they’re campaigning on traditional, and at times absurd, promises that they know best how to bring 20th century jobs “back.” In this one regard, maybe the future is already here because it doesn’t seem to me like anybody’s driving the bus.

Society Can’t Have What Authors Don’t Create

As a follow-up to my last post responding to Public Knowledge’s allegations of “regulatory capture” at the US Copyright Office, I thought one of their accusations deserved its own post. When copyright law is discussed as a broad principle—either in a practical or philosophical context—critics such as PK, Techdirt, the EFF, and Fight for the Future seem to view copyright from a collectivist perspective, stressing that its purpose is to serve society, which is the only reason why it should ever serve the author. As a result, these parties have at various times raised a fuss over statements to the contrary made by Register Pallante, and this sentiment was reprised in the “report” by Public Knowledge, Here’s what the report says:

Perhaps the starkest evidence of cultural capture can be found in statements by the current Register of Copyrights, Maria Pallante. She has, at various times during her tenure, commented that:

“Copyright is for the author first and the nation second.”
“I think the problem we have today in terms of imbalance that we might feel in the copyright statute is that we have gotten away from the equation that puts the authors as the primary beneficiaries, followed by the public good.”

The report at this point also cites two of Pallante’s statements about enforcement, but that’s a separate topic. The reason these “author first” quotes twist the copyright skeptic’s knickers stems from their focusing on the IP clause in the Constitution, which reads to promote the progress of the sciences and useful arts as a predicate to the congressional power to enact IP laws. There can be little doubt that the Framers did have a practical goal in mind when writing IP into the general legislature—that America would one day be all big and have science and culture just like Europe. But they had philosophical principles in mind, as well. And in both practical and philosophical contexts, the skeptics are wrong to criticize Pallante, let alone to cite these quotes as evidence of her “cultural capture” by big-money rights holders.

Practical Copyright

This one is just mathematical. In the simplest terms, it should be obvious that there is no way for works to be of any benefit to society until they are first created by authors. If Mark Twain doesn’t write the book, we don’t get to read the book; and if anyone can prove the inverse, that would be a powerful magic indeed. In this purely functional context, Register Pallante’s quotes merely reflect the only order of operations that can occur between creator and consumer, regardless of any other specifics pertaining to the application of copyright law.

If copyright does not first provide the author with a property right in his or her labor, society doesn’t get anything. To those who would counter this by doubting copyright’s value as an incentive—insisting that the author will create anyway—even if this were true, it is a position that moots the accusations lobbed at Pallante about the proper function of copyright. Instead, the assertion that copyright does not incentivize is a wholesale rejection of its utility, one which obliterates any discussion about the proper functioning of that utility.

Copyright’s Philosophical Beginnings

As Americans, we tend to focus a lot on the practical—usually on the commerce part of the equation—and leave the philosophical to the realm of political rhetoric. But the early arguments made for the protection of intellectual property, in both the state and federal legislatures, were predicated on the natural rights of the individual, and not on the individual’s fealty to society. In fact, one could say that John Locke’s assertions about the natural rights of the individual make a case for those rights in spite of society. This is because Locke’s Two Treatises on Government (1689) are argued from first principles in rebuttal to a treatise favoring absolute monarchy.

Locke asks the hypothetical question why the individual wants to abandon his absolute, natural liberty to the state at all and concludes that among the reasons is the protection of his property. And because property in Locke’s definition includes the individual’s faculties and capacities, property, therefore, includes the products of those faculties and capacities. So, the philosophical foundation for intellectual property in the United States is actually predicated on the natural rights of the individual just like the rights codified in the First Amendment.

Madison was well aware of these first principles when he wrote in Federalist #43, “The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals.”

In context to its philosophical heritage, the IP clause does not grant the right of intellectual property to the individual any more than the First Amendment grants the right of free speech to the individual. Both were held to be natural rights; and by affirming these in the law, the state promises to protect those natural rights. This is a manifestation, more or less, of what Locke had advocated 100 years prior to the assembly of the First Congress.

But what about promoting progress?

Back in 2012, Congresswoman Zoe Lofgren (D CA), who represents Silicon Valley, criticized Register Pallante’s “author first” statements when she said, “It seems to me that the Constitution is very clear that copyright does not exist inherently for the author but for the benefit for society at large.” But Representative Lofgren’s asserting the obviousness of the “promote progress” part of the IP clause is an indication that she doesn’t know her history as well as she knows what’s in the interest of her tech-industry constituents. As copyright scholar Terry Hart addressed in his response at the time, the IP clause in the Constitution isn’t quite so clear as Lofgren thinks. In fact, we have a rather thick body of caselaw in which the courts have consistently reiterated the plain reasoning cited above: that unless the author first creates, society gets jack. (NOTE: Oliver Wendell Holmes never used jack in this manner.)

Additionally, there is a rich anthology of debate over exactly what the Framers meant by each of the key terms in the IP clause, which really is something of a grammarian’s enigma. For instance, it has taken a fair bit of judicial haggling to ultimately determine that the word science now firmly refers to copyright law while the term useful arts refers to patent law. But get this: based on the argument for interpreting meaning in the parallel construction of the clause, that pesky word discoveries maps to useful arts (i.e. patents). And that’s a constitutional conundrum because we are taught even in grade school that a discovery is the antithesis of an invention and is, therefore, the exact word one would use to describe something that is not patentable! You can patent an invented toaster but not the discovered laws of physics that make bread crusty.

Like “discoveries,” both “promote” and “progress” have been variously interpreted in the courts and in legal scholarship, often revealing the biases of the interpreters. In a very interesting paper, Sean M. O’Connor of University of Washington Law School makes a case for a French influence in the Framers’ choice of words based on his analysis that Madison and others were highly cognizant of the Encyclopédie published in 1751. Through this lens, the word “progress” would only apply to achievements that could be quantifiably measured to make progress, and this would nullify the entire universe of creative works produced by copyright — and probably quite a few technological innovations to boot. (How many apps could be said to make measurable “progress”?) Still, O’Connor concedes that this French-influenced interpretation of the clause is an academic exploration in the strictest sense and not a proposal for application of the law.

So, regardless of how one chooses to argue Framers’ clear intent—which is not as clear as Zoe Lofgren implied—I doubt very much that we would choose to reverse history and un-create the American oeuvre. In this regard, we can know for sure that the Framers could not have imagined the technology-enabled explosion of creative works in the U.S. in the 20th century, and whether one favors the chicken or the egg, it’s hard to dispute that we have a lot of chickens and a lot of eggs. Individuals and society have benefitted tremendously from copyright.

Public Knowledge and kindred organizations are leaning on weak scholarship when they criticize Register Pallante, or any other copyright expert, for stating that copyright is for the author first and society second. It’s easy to invoke constitutional clauses in a PR context and claim “obviousness” in the Framers’ intent, but most of the clauses are one sentence long while the laws and histories built upon them fill the pages of some very heavy books.

The Illusion of More

Dissecting the digital utopia.