Solicitor General Says No Cert for “Dancing Baby” Case

 SCOTUS Photo by jgroup

After ten years and what must be thousands of attorney hours, the “Dancing Baby” case may have to do an about-face at the steps of the Supreme Court and, get this, actually go to trial. On May 5, the Solicitor General filed its brief recommending that SOCTUS deny a writ of certiorari in Lenz v. UMG, finding no basis for this Court to address the following question:

Whether a copyright owner may be held liable under Section 512(f) [of the DMCA] for sending a notification of claimed infringement based on a sincere but unreasonable belief that the challenged material is infringing.

At this point, the artist whose work was at the center of this case has been lost to the world (about this time last year); the baby is now a tween; and the case remains a hypocrisy-rich boondoggle, from its overall justification, to the particulars of the argument that the EFF has pursued, to the unavoidable misperception by some of the public that Prince personally bullied a fan.

Regarding the underlying rationale for Lenz, in the decade since it began (and not as a DMCA case by the way), no party has presented any solid evidence that rampant abuse of the DMCA takedown provision even exists. Yet, this has been the rationale and lead talking point riding on Prince’s purple coattails, trading on his fame to spotlight an incident that makes a poor example of actual abuse. Of course, the better examples don’t involve pop stars, cute babies, or major music labels.

The central hypocrisy in Lenz, other than the decade-long fishing expedition, which I tried to summarize in this post, is that the EFF has gone to great lengths to argue that a rights holder should be held to a very high standard of “knowledge” while the organization conversely advocates that no platform owner or ISP can ever know about infringement, or much of anything else, that occurs via their services. In simple terms, the EFF asserts that if defendant UMG did not conduct a fair use analysis of the “dancing baby” video, that this fault alone meets the statutory definition of “knowing misrepresentation,” which is a much stricter standard than general error.

The EFF has shouted repeatedly—and no doubt it will continue to shout—that no ISP or platform service provider can “police all the activity” on the web. This premise is generally accepted by rights holders, both large and small, and it is of course a foundation on which the compromises of the DMCA were born in 1998. Yet, this same organization has now leveraged a decade’s worth of litigation to evangelize the message that rights holders ought to be able to monitor, without error, DMCA filings that number in the tens of millions. And if an error is made, even after it is corrected according to statutory process (i.e. by counter-notice), the fault still rises to the standard of “misrepresentation,” which carries a burden of damages. The fact that damages, in this case, would mean that UMG would have to pay the EFF for the cost of its expedition is an absurdity that is hard to overlook.

In the brief filed by the Solicitor General recommending that SCOTUS deny cert in Lenz, the opinion specifically cites what it calls a “significant legal error” in the way in which the statute has thus far been interpreted. Section 512(c) of the DMCA lays out the manner in which a takedown notice must be filed, including a statement of “good faith belief” that the use in question is infringing. Section 512(f) provides for the types of relief for damages that either a rights holder or a user may seek if a wrongly-filed notice or counter-notice meets the standard of “knowing misrepresentation.”

The EFF has sought to argue that because UMG failed to do a fair-use analysis of the “dancing baby” video, this amounted to “knowing misrepresentation.” I and others have already commented on the inherent subjectivity of fair use that makes this argument problematic whether a rights holder does the analysis or not; but here’s what the SG brief says with regard to the statute itself:

“Petitioner … assumes that the phrase ‘misrepresents under this section’ in Section 512(f) ‘includes a misrepresentation that one has formed a good-faith belief required under Section 512(c). But that is not what the statute says. Although Section 512(c) specifies a number of representations that a takedown notice must contain, the only representation that (if knowingly false) can give rise to liability under Section 512(f) is the representation that the challenged material ‘is infringing.” If petitioner’s video did not actually constitute a fair use, respondents’ statement that the video was infringing was not a ‘misrepresentation,’ whether or not respondents conducted any fair-use inquiry before sending their takedown notice. [Emphasis added]

The court of appeals’ analysis thus contains a significant legal error, and one that could give rise to unwarranted Section 512(f) liability in case where the challenged material actually was infringing. This case does not provide a suitable vehicle for correcting that mistake, however, because the error potentially benefits petitioner and respondents have not sought review of that aspect of the court of appeals’ decision.”

In reference to the words emphasized above, this is an important distinction. If a rights holder specifically instructs employee(s) filing notices to avoid all fair-use analyses in an act of “willful blindness,” this is typically held to be equivalent to “knowing misrepresentation” under the law. Merely screwing up, missing, forgetting, overlooking, etc. does not rise to that level. Moreover, common sense says that the DMCA was designed to be an extra-judicial, compromise solution to the inevitable reality that users of ISPs would infringe copyrights. Such a solution could not have assumed that rights holders would never make a mistake or that a mistake would be tantamount to “knowing misrepresentation” implicating damages.

Meanwhile, wherever courts do seem to find acts of “willful blindness” among platforms and ISPs (e.g. Backpage and Cox), the EFF is consistently on the service provider’s side, unwaveringly defending safe harbor shields as though they are inalienable rights rather than conditional provisions. And by the same token, we are not likely to hear the EFF argue that a user who files a counter-notice to restore a file—a party more likely to err than a rights holder like UMG—ought to be held to the same “knowledge” standard they’re seeking in this case. Because, as the SG brief observes, Section 512(f) applies to “misrepresentation” by a filer of either a notice or a counter-notice. So, users might want to be careful what the EFF wishes for on their behalf.

This misread of the statute, in the opinion of the brief’s authors, is a key reason why the Solicitor General recommends denying cert—because the Supreme Court is a “court of review, not a court of first view.” In theory Lenz v. UMG could keep dancing for quite some time—right through Holden Lenz’s college years, annual tributes to the late Prince, legislative revision of the Copyright Act itself, and who knows what kind of changes among various web platforms and ISPs.

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