Tag: DMCA

A Good Right to Repair Bill Would Not Break Things

Rep. Mondaire Jones (NY), along with co-sponsor Rep. Victoria Spartz (IN) introduced a bill in February called the Freedom to Repair Act. Seeking to remedy a specific, unintended consequence of one part of the Copyright Act, the bill overreaches so dramatically that it would effectively legalize piracy of creative works. If Congress wants to address unfair practices among certain manufacturers of machines and vehicles, the solution cannot be to remove copyright protections for authors, filmmakers, musicians, and other creators.

We all know that many domestic and commercial products are at least partly controlled by software. It has been years since anyone has taken a car to a mechanic without seeing it hooked up to a computer to obtain diagnostic data about the vehicle’s condition. And because software is protectable by copyright law, consumers of various products complain that manufacturers use enforcement of their copyright rights to maintain monopoly protection over replacement parts and repair processes necessary for maintenance.

While it is true that using copyright law to extend unreasonable, post-sale control over machines and vehicles can strain copyright’s core purpose to foster creative expression, the Freedom to Repair Act makes no distinction between the creative industry and the world of manufactured goods. Instead, the one-page bill simply upends DMCA Section 1201 of the Copyright Act—the section that prohibits circumventing digital rights management (DRM) tools (a.k.a. technical protection measures) used to prevent unlawful copying or distribution of protected material.[1]

The difficulty of course is that creative works are all converted into code so we can have products like eBooks and enjoy filmed entertainment or music via downloads or streaming services. The same Section 1201 that may be wrongly exploited by certain manufacturers is still predominantly doing the work of ensuring that creative material can be legally commercialized so that the professionals who produce these works are paid for their labor, skills, and expertise.

The Freedom to Repair Act is so broadly written that it would repeal Section 1201 without regard for the diverse range of economic activity it continues to foster. Reps. Jones and Spartz should be reminded that the creative industries contribute about $1.5 trillion to U.S. GDP, and Jones’s state of New York is one of the most vibrant creative markets in the country. If the congressman hopes to craft an effective right to repair bill, his office needs to hear from the many creative professionals in his state alone whose livelihoods increasingly depend on the provisions in Section 1201.

With the vast majority of us consuming most of our media through on-demand digital services, Section 1201 is more relevant than it was in 1998, when it was first adopted to encode material distributed in formats like DVDs. Meanwhile, the market continues to tempt opportunistic ventures hoping to develop new methods and new rationales for circumventing copyright law and exploiting creative works without license. The last thing the creative industries need is for Congress to clear a new path to legalized piracy.

I join those who endorse the spirit of a right to repair initiative, but the Freedom to Repair Act, as written, would allow the exception to overwhelm the rule and cause considerable and needless harm to millions of professionals who work in creative fields. Consequently, the bill is a disservice to the issue it proposes to address because it is justifiably going nowhere on Capitol Hill. If Rep. Jones et al. are serious about a federal right to repair law, they must meet with representatives of the creative industries and work to craft nuanced legislation that targets the issue at hand and does not carelessly fix things that ain’t broken.

[1] It should also be noted that complaints about a right to “jailbreak” various products often blame copyright law where regulations like environmental safety may be the underlying basis for the prohibition.

Photo source by: JGade_DK

Piracy on Legal Platforms is Still Killing Creative Careers

Once again, the question arises whether there is any hope of addressing mass online copyright infringement on otherwise legal platforms?  It’s an exhausting problem, more than two decades old, and it isn’t getting better. A recent article by Annie Levin for Observer describes a new campaign by Music Workers Alliance (MWA), in which she sums up the heart of the problem thus:

Because of sites like YouTube, where all music can be accessed for free, streaming services like Spotify can get away with paying musicians a starvation average wage of $0.0038 per stream. A musician must have their song streamed almost half a million times a month to make minimum wage. Far from making a profit, musicians often end up in debt after making an album.   

As the article describes, MWA is focused on lobbying for changes to Section 512 of the DMCA, which shields online platforms from liability for copyright infringement committed by their users. But with regard to major platforms like YouTube, Meta’s properties, and Twitter, it is hard to wonder if we are not past the point of seeking meaningful amendment of the DMCA to better support smaller creators. As noted in my recent post during Fair Use Week, there is significant evidence suggesting that the major platforms are not in compliance with DMCA §512 anyway.

If that is the case, what can legislative reform accomplish? §512 is a voluntary provision under which compliance provides a “safe harbor” liability shield against litigation. In order to prove non-compliance, some entity would have to sue, for instance, YouTube, and spend the next decade or more in a fight with Google’s tobacco-industry scale legal counsel. And ain’t nobody got the resources for that. Thus, if the actual litigation shield today is that YouTube et al are simply too big to sue, then §512 is little more than enforcement theater, and amending it could be little more than legislative theater—at least as a means to address chronic infringement on the biggest platforms.

Then There’s the Standard Technical Measures Debate

On a related topic, the U.S. Copyright Office, in late December, sought public comments regarding the agency’s future consultation for the development of more robust Standard Technical Measures (STM) to identify and mitigate infringing uses of works on legal platforms. Under DMCA §512(i), Congress intended that OSPs and copyright owners would collaborate to develop STM, and at the time the DMCA was written, it was the OSPs who promoted the efficacy of STM as a basis for establishing the “safe harbor” provisions in the first place. But as all creators are painfully aware, in the 24 years since the law was passed, collaboration to achieve the Standard in STM has never happened.

Instead, a hodgepodge of technical measures are used, several of these developed by the OSPs themselves to address infringement only insofar as it serves the platform’s interests. For instance, as the members of MWA are well aware, YouTube’s ContentID system is provided to major labels and sound recordings made by megastars but is not available to many thousands of other owners of music rights—even works produced by fairly well-known composers and songwriters. As the STM comments submitted to the USCO by Copyright Alliance state:

… these technologies are usually not voluntarily made available to all types of copyright owners and OSPs have refused to come to the table with other stakeholders to have them formally adopted as widely recognized standards under section 512(i). This has led to a lack of uniformity among and access to existing technical measures that makes it difficult for those copyright owners who do not have access to combat infringement. On the other hand, OSPs prefer the status quo because it allows them to avoid adopting and implementing standard technologies.

Copyright owners would like to see the Copyright Office play a more integrated, regulatory role to achieve standardization of technical measures to better protect the works of a much broader spectrum of copyright owners. Meanwhile, the Electronic Frontier Foundation and similar organizations cite flaws in existing technical measures as a basis to argue against any expansion of these technologies. “Despite years of financial and technical investment, filtering technologies continue to do a poor job of sorting legal expression from infringement,” state the comments submitted by EFF to the Copyright Office. More specifically, the comments state the following:

The core problem is this:  distinguishing lawful from unlawful uses often requires context. For example, the “amount and substantiality” factor in fair use analysis depends on the purpose of the use. So while the use may be a few seconds, as for some kind of music criticism, it can also be the whole piece, such as in a music parody. Humans can flag these differences, automated systems cannot.

There is a measure of truth in this refrain, which is played every time the topic of STM is on the table. But its relevance should be considered in terms of evidence rather than theoretical debates. At internet scale, with infringements occurring in the tens of millions every month, and Big Tech still saying, “We can’t police it all,” I think the fair question asks why creators like those in MWA should continue to bear the cost of allowing the perfect to be the enemy of the good?

If the argument is that the good (i.e. better STM) can never be achieved, then the EFF and their fellowship should be required to cite more than anecdotal evidence of potentially harmful error. Because after twenty years, the system in place has a 100% failure rate for many stakeholders on the enforcement side of the copyright equation. That we should continue to allow smaller creators to watch their careers dissolve simply because STM will produce some error is an immoral argument for the status quo. And when that argument is paired with the fact that the major OSPs are now barely incentivized by the DMCA liability shield, the resulting “wage theft” described in Levin’s article is downright criminal.

Fair Use Week: A Salute (of sorts) to Lenz v. UMG

Well, here we are again. Fair Use Week. Ninth annual. I still don’t know why this doctrine in copyright law should be observed on the calendar, let alone for a whole week carved out of Black History Month. But in 2013, some anti-copyright ideologues thought it should be a thing, so now it’s a thing. I don’t know. Wear something iridescent?

While deciding whether to write a post this year, I considered revisiting Google v. Oracle, which would be a solid candidate for the worst (i.e. most incoherent) fair use decision in contemporary copyright law. But in light of recent reports about platform non-compliance with the DMCA, I thought about Lenz v. Universal Music Group and what the Electronic Frontier Foundation allegedly “won” after ten years in that boondoggle, commonly referred to as the “dancing baby” case. I know. Lenz is so 2015, and the dancing baby himself is probably looking at colleges right now, but hear me out.

Lenz involved Universal Music Group’s DMCA takedown of a home video with the song “Let’s Go Crazy” and, as argued in this post, it was a lawsuit looking for a complaint. With a high-profile name like Prince in the mix, the EFF and sister organizations seized the opportunity to amplify general allegations of DMCA takedown abuse, even though the case itself made a poor example of actual abuse.[1] Seeking a basis for litigation, the EFF started with tortious interference, which failed; then tried infringement of the speech right which failed; and finally landed on UMG’s alleged violation of DMCA Section 512(f).

Under §512(f), if the copyright owner “knowingly materially misrepresents” that the use at issue is an infringement, they may be liable for damages in a lawsuit. Thus, EFF argued on Lenz’s behalf that UMG had failed to consider fair use when it issued the takedown of the video, and this failure was tantamount to knowing misrepresentation of a claim of infringement.

What EFF achieved for its decade-long efforts was so much confusion in the public sphere that people often thought Prince himself had sued Lenz, and what the organization obtained in the final ruling at the Ninth Circuit was both vague and a bit troubling for independent creators. The court concurred with the general principle that in order for a copyright owner to comply with Section 512(f), they must “consider fair use” prior to sending a takedown notice. But what exactly did that mean?

Many observers in 2015, I among them, found the holding disturbing in spirit though, perhaps, less concerning in practice. The problem anticipated was that the headline about “considering fair use” would frighten individual creators away from enforcement via takedown. On the other hand, absent discoverable facts, how would a respondent in a case prove that the individual copyright owner had “failed to consider fair use” without testimony from a certified mind reader?

With a corporate rightsholder like UMG, there are discoverable records available to prove, or at least indicate, that the owner might have failed to consider fair use before issuing a takedown.[2] By contrast, independent rightsholders sending their own notices, make a good-faith effort in their own minds without creating a document trail; and there is nothing in the statute, or the ruling in Lenz, which holds that this good-faith consideration creates a liability under 512(f). Not that the EFF, along with Google and Co., did not try to close that gap.

The EFF had argued that the notice-sender must make an “objective” consideration of fair use, which is a stricter standard than a good-faith “subjective” consideration. At the same time, an amicus brief filed by Google, Twitter, Tumblr, and WordPress, asked the Ninth Circuit to reconsider the “objective” standard issue in a relevant prior ruling (Rossi v. MPAA), arguing:

“… the more misinformed or unreasonable the copyright owner, the broader the immunity he would have from liability under Section 512(f). This reading of 512(f) would effectively encourage copyright owners to remain ignorant about the limitations on their exclusive rights under the Copyright Act because the less they know, the more leeway they would have to send takedown notices.”

That was one hell of an incendiary argument coming from an industry that built multi-billion-dollar platforms on its capacity for willful blindness to copyright infringement. The EFF and the major platforms tried to amend jurisprudence (and the intent of the DMCA) so that independent artists and creators would have to demonstrate a rigorous understanding of the law—especially the highly-subjective fair use doctrine—while rampant infringement of their works would persist beneath the shrugs of operators who claimed they cannot know what is happening on their platforms. Fortunately, the court did not go as far as EFF, Google, et al had asked.

The other headline-making victory which Lenz produced was the court’s alleged description of fair use as a “right” rather than an “affirmativedefense” to a claim of infringement. This is a doctrinal debate in which the anti-copyright crowd naturally views fair use as a right despite the fact that this distinction is at odds with one of their other favorite talking points—that American copyright law as a whole is a “creature of statute” rather than a codification of a natural right.[3] If that is doctrine, then 107 (fair use) is no more or less a right than 106 (the exclusive rights vested in the author). Nevertheless, back in 2015, there was much rejoicing in anti-copyright tents when the court in Lenz stated the following:

Originally, as a judicial doctrine without any statutory basis, fair use was an infringement that was excused—this is presumably why it was treated as a defense. As a statutory doctrine, however, fair use is not an infringement. Thus, since the passage of the 1976 Act, fair use should no longer be considered an infringement to be excused; instead, it is logical to view fair use as a right. 

As legal scholar Devlin Hartline noted in a post at the time, the Ninth Circuit was citing a footnote expressed as the personal opinion of one judge in an Eleventh Circuit case and was, therefore, not even a holding in that circuit. Further, the same footnote ended by stating, “Regardless of how fair use is viewed, it is clear that the burden of proving fair use is always on the putative infringer.” So, as a practical matter, then, fair use is an affirmative defense, which is in fact Supreme Court precedent. Moreover, Hartline recently wrote to me via email on this matter …

Thankfully, the Ninth Circuit’s reading of Section 512, which erroneously equates the failure to form a good faith belief with a knowing misrepresentation, has not been adopted in other circuits. Perhaps more importantly, Lenz and subsequent Ninth Circuit decisions make clear that fair use remains an affirmative defense under Section 107, and the burden of proof falls on the defendant claiming fair use. The Ninth Circuit’s discussion of fair use as a ‘right” thus does not change anything where it matters most—infringement litigation.

DMCA Abuse Does Persist – Just Not by Rightsholders

But why rehash Lenz during Fair Use Week in 2022? Because since that time, when the dancing baby story was exploited in an attempt to weaken what little remedy DMCA takedown offers most creators, several of the major platforms are today not even pretending to comply with their side of the DMCA bargain. Not only do the platforms continue to maintain labyrinthine, redundant notice-filing systems designed to frustrate copyright owners, but they are increasingly avoiding expeditious removal, as the statue requires.

As reported last September, photographer Martin McNeil documented the number of conflicting emails he received from Instagram responding to notices he sent to remove just one photo from various threads. Instagram complied with some notices but then alleged via email that McNeil is not the copyright owner of the same photo pursuant to other notices. This erratic conduct implies a system designed to avoid takedown and frustrate the rightsholder, and if Meta were sued for copyright infringement, this system would likely prove at discovery that the platform has voided its liability shield under the DMCA.

Similarly, Twitter now rejects most takedown notices according to a story at TorrentFreak posted in late January, and these revelations are consistent with a pattern suggesting that few, if any, of the major platforms are shielded by the “safe harbor” provisions in Section 512 because they are not in compliance with the statutory conditions. One cannot know for certain without suing these entities, which is, of course, the point:  they are all too big to sue and, therefore, don’t give a damn whether they are shielded by the safe harbor.  

So, as small-business creators encounter new, aggressive, and statute-violating roadblocks to discourage enforcement of the right to remove unlicensed uses of works, it seems like a good moment to revisit the extraordinary hypocrisy of Lenz v. UMG, when the EFF et al tried to change fair use precedent and place undue burden on copyright owners at the same time.

The Lenz campaign mostly fizzled as a legal matter but still made plenty of noise while it lasted. In 2018, the EFF even awarded Stephanie Lenz (i.e., themselves) its Pioneer Award for “fair use activism,” which is some purple praise for a case that barely contained an injury.[4] If for the tenth anniversary of Fair Use Week anyone wants to hand out awards, I nominate Lenz v. UMG for outstanding achievement in the field of Anti-Copyright PR by Means of Litigation.

[1] This in addition to the fact that no data has yet shown that takedown abuse is rampant.

[2] Though even UMG’s case was somewhat unusual and not likely to be repeated.

[3] I quarrel with this view to an extent, but it is doctrine since Wheaton v. Peters (1834).

[4] The video was restored to YouTube by the DMCA counter-notice procedure, and Lenz is on record saying that she did not care much about the removal in the first place.