Tag: copyright

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.

Clinton equivocates so Masnick obfuscates.

Last week, Hillary Clinton released her Initiative on Technology and Innovation, brief, which reads a bit like a missive from the Internet Association and does very little to clarify her own views—possibly because she doesn’t have any—on the role of copyright in the digital age.  My general criticism of the whole brief is that it seems to view “technology” as an end rather than a means—still talking about access as its own reward, even in a time when Clinton’s opponent is as much proof as we should ever need that access alone does not necessarily foster a new enlightenment.

That Clinton’s statements are vague is the one criticism I share with Mike Masnick at Techdirt. Of course, what I hear in her rhetoric is that she’s been tippling at the Silicon Valley Kool-Aid, while Masnick seems to feel she hasn’t had quite enough. And that’s fine. We have divergent agendas.  But the substance of Masnick’s rebuttal on the subject of incentives does not accurately reflect the debate from either side, in my opinion.

Clinton’s statement contains the following:

The federal government should modernize the copyright system through reforms that facilitate access to out-of-print and orphan works, while protecting the innovation incentives in the system.  It should also promote open-licensing arrangements for copyrighted material supported by federal grant funding.

And Masnick rebuts …

What are the “innovation incentives in the system” right now? Well, on that, people totally disagree. Some people think that fair use, user rights and DMCA safe harbors are the innovation incentives in the system. Others, of course, argue it’s long copyright terms and insane statutory damages. These two groups disagree and the Clinton platform offers no further enlightenment. 

I’m sure his statement resonates inside Techdirt’s echo chamber, but portraying “long copyright terms and insane statutory damages” as core incentives for rights holders specifically oversimplifies both of these topics and it generally misrepresents creators and their motivations.

“…long copyright terms…”

Yes, the copyright term is part of the incentive rationale, but the actual duration of terms is influenced by various interrelated and dynamic factors—both philosophical and utilitarian—that consider market conditions and, yes, a discussion as to what seems appropriate to grant an author, which has generally extended to two generations of his/her heirs.  Presumably, there is an ideal threshold for terms—too short and incentive may be diminished for various types of works; too long and copyright’s purpose to promote progress may be defeated—but the sweet spot can only be theorized based on a holistic view of the contemporary, global market for the range of protectable works. To boil all that down to say that rights holders think long terms provide an incentive to create and distribute is no more nuanced than Hillary Clinton’s equivocal statement on the matter.

“…insane statutory damages…”

While it’s true that there is no reason to rely on a law that cannot be enforced, Masnick’s reference to “insane statutory damages” is stretching this tautology a bit thin in order suggest that rights holders view the prospect of litigation awards as an incentive to create in the first place. Statutory damages are set, in part, because the burden for a plaintiff to prove “actual damages” is quite steep. And because federal litigation is very expensive, hiring an attorney to represent a claim in which statutory damages may not be awarded can be extremely difficult for many rights holders.

Masnick also glosses over several details with regard to awards, including the fact that a lot of cases settle without awards anywhere near the statutory limits; that many copyright advocates currently support the creation of a copyright small claims court; and that statutory damages only apply in cases in which the works are registered with the Copyright Office. This last point is particularly relevant since Masnick seems eager to end the automatic copyright formalized in the 1976 act when he cites Clinton’s reference to “orphan works” and writes, “the only real solution to the orphan works problem is to go back to … requiring registration to get a copyright.”  But as a practical reality, when it comes to litigation and statutory damages, copyright registration is required, so the real pen-and-paper debate is not exactly defined by the lines Masnick is drawing with his oversized crayons.

“…fair use…”

As for the opposing view on incentives, it’s odd for Masnick to invoke fair use and DMCA safe harbors* when neither subject means anything without an enforceable regime of copyright in the first place. For example, to call fair use an incentive is preposterous absent an enforceably copyrighted work that is being used, so it cannot accurately sit on the opposite side of an imaginary line supposedly contrasting different incentives.  Fair use is a possible consideration, but most of the time, most creators don’t even think about copyright when they begin to author their own expressions.  This is because the idea/expression distinction in the law already has them well covered nearly all of the time—a principle codified into federal copyright law 136 years ago relative to the decade since Web 2.0 supposedly stirred up all this fair use controversy for all manner of creators.

“…DMCA safe harbors…”

I assume Masnick is not saying that the DMCA liability shield (safe harbor) for OSPs directly incentivizes creators.  Presumably, he’s saying that the safe harbor is necessary to provide a foundation to incentivize the blogger or YouTuber to create new works via these platforms, but that’s a pretty big logical leap.  As with the fair use fallacy, this view assumes that infringement is integral to expression and the incentive to express.  Additionally, the safe harbor shield doesn’t technically protect the user/creator at all. As noted in my recent post about Lewis Bond, this conflating of the OSP’s interests with the user’s interests is part of what I think gets some creators into legal hot water.  While, it is true that platforms like YouTube foster new forms of expression (e.g. mashups) that ask new questions about copyright’s boundaries and exceptions, it is misleading to highlight safe harbor as an incentive for those who make these expressions, especially when the liability shield clearly provides an incentive for OSPs to turn a blind eye to obvious infringements.

In my experience the most consistent incentive I’ve encountered among creators I’ve known, or known about, is that copyright inextricably links a given expression to its author.  This is not only a significant motivation for creators—one that often transcends money—but it is also a distinction that benefits society most by preserving the relevance of context—a value Web 2.0 seems well-suited to destroy with alarming frequency.

As for candidate Clinton, Masnick and I clearly want to hear different specifics from her as she progresses toward the White House (I hope).  Based on the choice of rhetoric in the brief, though, I do suspect the internet industry had a hand in its writing.  In particular, the arbitrary reference to “orphan works” is bizarre—as though this arcane bit of copyright flotsam represents some untapped cultural or economic potential for America.  Overall, between the brief and Masnick’s comments, it seems we’re in stuck in the meta-debate about what the debate is about.

*I’m ignoring user rights because it’s too vague and too broad.

5 DMCA Myths That Just Won’t Die

DMCA MythImage from Pond5

I read several complaints on Twitter and in various blog posts from OSP representatives and copyright critics that last month’s USCO-hosted discussions in San Francisco about Section 512 were not very productive and that the rights holders are not being reasonable.  I cannot comment on tone or details as I was not there.  But I do think it is significant that the five myths described below seemed to trend rather emphatically from the keyboards of some of the usual suspects in the days immediately following those meetings.  So are the rights holders being unreasonable, or are they being asked to politely entertain fallacy as though it were productive discourse?

1. The DMCA Favors Rights Holders

This is the most persistent myth that continues to echo throughout the blogosphere and even mainstream media as though it were axiomatic.

Perception:  It’s too easy for rights holders to remove material and either purposely or inadvertently stifle free speech or fair uses.

Reality:  DMCA takedown notices are not easy to send, particularly if the OSP is Google. Stephen Carlisle describes the 46+ steps that a notice sender must go through, and Ellen Seidler has thoroughly documented the roadblocks in the notice/takedown/counter notice process.  These are not opinions but verifiable data that anyone can confirm for themselves. Anecdotally, independent rights holders consistently report that they have given up trying to enforce their rigths via DMCA because the process is too cumbersome and the rate and volume of infringement too great to address with their limited resources.  Meanwhile, safe harbor provisions presently shield OSPs to the extent that they have little to no motivation to mitigate the ever-increasing rate of infringement.

Next, if a User/Uploader files a counter notice—even in regard to a clearly infringing file—and the OSP restores that file, at that point the rights holder’s ability to enforce a claim via DMCA is exhausted. She has no recourse other than litigation, which most creators and artists cannot afford.  And if the User/Uploader is based in a foreign country, as is often the case, litigation is likely not an option at any price.

2. The Largest Rights Holders Are the Biggest Abusers

Perception:  Because the large, corporate rights holders (e.g. studios & labels) send out a high number of takedown notices via automated systems, it is logical to assume they will cause the greatest number of infringements against free speech and fair use.

Reality:  To borrow an excellent metaphor from a recent Berkeley/Columbia report (which actually skews toward OSP interests), it may seem sensible to assume that the entitites casting the biggest nets will catch the most “dolphins.” And although this is sound reasoning on the surface, the data we have to date—including this report—seems to point in the other direction.  Although a very high number of notices (tens of millions) are sent by the large rights holders, these are also the entities that can afford best practices and which have teams of legal experts to oversee the process. They also own the largest libraries of the most popular material that is universally infringed across the entire web.   Based on available information, it appears that despite the high volume of notices, it is actually quite rare that these entitites send a notice that is not targeting an infringing link or file.

Meanwhile, both quantitative and qualitative data thus far indicate that DMCA takedown errors tend to be made by smaller, less experienced, entities or rights holders and that outright abuses typically come from entities or individuals who have no grounds to use DMCA in the first place.  In fact, this is often the foundation of many attempted abuses:  that a DMCA takedown doesn’t even concern a copyrighted work. This observation is supported by the anecdotal evidence offered by organizations like EFF in its communications and in court briefs filed by EFF and similar groups.  Consistently, DMCA abuse stories involve every kind of notice filer other than the big rights holders.

3. Use of a Whole Work Can be a Fair Use

This looks like a shiny new talking point in the rhetorical arsenal of copyright critics, one that seems to be a direct reaction to proposals made at the USCO round-table discussions.

Perception:  Rights holders have proposed that a stay down amendment to the DMCA might at least focus on uploads of whole works.  But, the opposition counters that whole works can be fair uses. So how can there be a statutory provision for whole works?

Reality:  Every serious person in the conversation knows exactly what’s being discussed in the context of whole works.  We’re not talking about the fact that the Betamax case (1984) holds that it is a fair use when you record a TV show for your personal use. We’re not talking about the “use of whole works” by Google Books, judged fair based on the “transformativeness” of the application, which displays snippets but does not make whole, copyrighted books available.  And we are clearly not talking about new creative expressions, which almost never make use of whole works but only some portion of a prior work.

What we are talking about with regard to Section 512 and whole works is what happens when some jamoke uploads a whole feature film, TV show, or song to YouTube. This is not only not a fair use, but it is not even a use at all.  It is simply an unlicensed distribution. That anyone would even refer to fair use precedents like the Betamax case with regard to this kind of blatant infringement reveals precisely the kind of “reasonable discussion” rights holders are being asked to have regarding DMCA.

4. Copyright Interests Want to End Safe Harbors

This seems to be one of those errors that occurs when we play the kids’ game Telephone with the exponential power of social media to distort facts.

Perception:  Because rights holders are seeking amendment to the DMCA, particularly to Section 512 with an emphasis on some sort of stay down provision, the logical extension of these efforts will be to end the crtitical safe harbor protections for OSPs.

Realtiy:  Many rights holders depend on safe harbors.  News organizations in particular are both rights holders and OSPs and would be adamant about preserving the safe harbors in the DMCA if anybody were trying to “end” them.  What rights holders are seeking on this matter is that major OSPs meet the obligations already intended by the DMCA. Safe harbor is not unconditional.  But many OSPs have pushed the boundaries of reason and good faith vis-a-vis compliance with the statutory conditions necessary to maintain the safe harbor shield.

For example, a repeat infringer is supposed to have his/her account suspended; and if this condition were honored, this alone would have a mitigating effect on infringement without dramatically changing the law or “ending” safe harbors.  Unfortunately, the DMCA does not explicitly define the meaning of “repeat infringer,” and many OSPs have exploited this imprecision in the statute to avoid adopting or enforcing meaningful Terms of Use policies for chronic abuses of their services.  Given the OSPs’ reluctance to cancel accounts and the ability of Users to create multiple identities, the DMCA inadvertently sheilds both Users and OSPs, which may both (in some cases) monetize outright infringements of works.  Congress did not intend to provide safe harbor for willful and repeated infringements for financial gain.

5.  New Creators are Afraid to File Counter Notices

In fairness, this theme is not wholly unfounded but appears to be exaggerated in the context of the larger discussion about DMCA.  (And this one has many angles, so apologies for the length.)

Perception:  A new creator (e.g. a YouTube video maker or blogger) will make a fair use of a work but will be afraid to file a counter notice because this may trigger a lawsuit by a corporate entity with an army of attorneys.

Reality:  While the counter notice fear does manifest for some new creators, this case-by-case concern is a distraction from the more general debate about the inadequacy of DMCA to address large-scale and clear infringements by users and entities that are not creators of any kind.

With regard to creators, the consideration of use and the remedies for these concerns should be the same in the age of the internet as they were 20 years ago.  A creator of a new work has always been responsible for considering the copyright implications of his/her use of a protected work; and web-only creators are not technically any more vulnerable to litigation in a digital-age paradigm. (To the contrary, millions of infringements are let go every day.)  Just because digital technology makes it easier to infringe, this should not inherently change the burden to consider copyright when making explicit—let alone commercial—use of a prior work in a new expression.

This is not to say that a new creator’s work will never be wrongly targeted by a DMCA takedown notice. In a universe comprising trillions of uses, it is almost inevitable that this will happen.  But the remedies are no different for the creator who publishes on a web platform than any other traditional distribution. And these remedies vary depending on the parties involved. If a creator has made use of a work he believes to be fair and is unsure about filing a counter notice, he may do what every other creator has done for decades, which is to seek legal advice.

If I were making a documentary film and needed footage belonging to a major movie studio, I would not be foolish enough to distribute on a presumption of fair use without legal counsel, and I would err on the side of licensing that footage. Because, yeah, those guys have big legal guns.  Why should this consideration be any different for a blogger or a YouTuber?  Or to look at it another way, would I be more cavalier about infringing the work of a fellow filmmaker because I know he doesn’t have a legal department? That seems wrongheaded. Particularly in a case in which the work(s) used are the property of an independent author who also does not have attorneys on staff, why is the new creator any less responsible for considering copyright infringement than the original author is for considering fair use?  It seems to me these parties are on equal footing in these evaluations.

But in this latter circumstance of indie v indie, we return to the problem of Myth #1 because the new creator has the advantage provided by the counter notice procedure in DMCA, which would allow a use to persist on a web platform, whether it is infringing or not, unless the original author has the resources to litigate. If the new creator’s use really is fair, that’s probably what the original author’s attorney would advise rather than a lawsuit. If the use is actually infringing, then the liability occurred when the file was originally uploaded, and a counter notice is not actually required in order for the original author consider litigation.  Hence, it seems the “fear” of filing counter notices, while true in certain cases, is probably being exaggerated in order to avoid talking about what we’re really talking about.