Tag: EFF

Lenz Ruling Isn’t Really About the Little Guy

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…

Perception

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.

Reality

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 Ruling

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.

Advocacy or PR from the EFF?

Two posts ago, I helped ruffle many feathers — and awaken a few trolls — when I accused the EFF in general, and attorney/blogger Mitch Stoltz in particular, of producing scare-mongering hyperbole by never passing up an opportunity to ring the pavlovian SOPA bell.  Regular readers of this blog know that I have often been critical of this organization because I believe its communications too often vacillate between public advocacy (its stated mission) and PR/policy work on behalf of the Internet industry.  And the apparent correspondence between these interests is admittedly a bit confusing from time to time. Because the Internet is so thoroughly integrated into most of our lives, it is easy to believe that, for instance, what’s good for Google or Twitter or Pandora, is inherently good for those of us who rely on the flow of digital data for business, entertainment, news, relationships, and even expressions of identity and purpose.  I’ve said it before.  No other industry — not medicine, not petroleum, not even food — has ever enjoyed so much latitude in the ability to associate its motives with the public’s defense of its civil liberties. This is a potent political cocktail, which is why I advocate vigilant skepticism.

So, two days ago, Mr. Stoltz posted an opinion piece written in a dispassionate, lawyerly tone that I had just recently accused the EFF of adopting only rarely.  In this article, Stoltz offers a frank analysis as to why he believes a pre-1972 public performance right, granted in the Flo & Eddie case and now being appealed, will “squelch competition in new music services” if upheld.   Music licensing can be mind-boggling for attorneys, so I won’t be the one to parse any of Stoltz’s legal statements, but will point readers, as usual, to Terry Hart’s historically contextualized summary of this same matter.

But regardless of the legal merits on either side of this issue, the main reason I’m bothering to cite Stoltz’s new post here is that I’m unclear as to why the EFF even views this case as relevant to the general public’s rights in the digital age.  This kind of legal/financial wrangling among business interests has been going on forever, and it is rare that the outcomes set precedents that have much to do with the rights of the rest of us citizens.  As such, this particular story about public performance rights and streaming and satellite services seems much more appropriately the purview of either business reporters or PR agents for one industry or the other.  (So, you see what I’m driving at.)

I like music streaming and hope it evolves into a model that works for both consumers and creators — because right now it does not — but I certainly don’t consider Pandora’s or Spotify’s financial interests as having anything to do with my civil liberties in the digital age.   So, why does the EFF?  I suppose the closest thing to a rights issue would be Stoltz’s thesis that this ruling is harmful to competition, but even that is a stretch vis a vis civil liberties.  Moreover, as I’ve said in the past, and as any observer can can see, the Internet, by its very nature, doesn’t tend to produce multiple competitors in spaces like music streaming.  To the contrary, the Web tends to foster monopsonies (e.g. Amazon, YouTube) that are able to dictate, rather than negotiate, terms with suppliers and creators.  And that’s not the fault of rights holders, that’s just the nature of the technology in its present form.

To be clear, I don’t think there’s anything automatically wrong with vested interests organizing around policy.  It’s how most policy gets done, whether we want to admit it or not.  And often, there are mutual interests and alliances between big and small, between a corporate interest and the everyday citizen or entrepreneur.  For instance, I strongly believe that independent film will not thrive in a market that fails to mitigate piracy, and so independent filmmakers share this common ground with the big studios, which are the only entities with the resources to address piracy in either policy or legal arenas.  By the same token, I guess it is not inconceivable that the interests of music streaming companies can’t be aligned with our civil rights, but it is not readily apparent as to how this might be the case.  Instead, it seems that what the EFF opposes most of all is any policy that looks like an expansion of rights for creators ever. And this is interesting in itself because it implies that the millions of creators in this country are not part of the “your” in the motto Defending your rights in the digital world.

The Knights Who Say SOPA

At last count, the EFF has over 40 attorneys on staff* and lord only knows how many communications minions.  So, if this organization is going to maintain its loose relationship with reality, they might at least take a meeting and invent some fresh exaggerations.  But no. SOPA is just too provocative a buzzword to let go. And as part of their unrelenting strategy to keep trying to scare the hell out of people, the EFF has invoked SOPA so many times, I’ve personally run out of colorful metaphors by which to mock them for it and have had to resort to Monty Python references.

For instance, in this recent missive, EFFer Mitch Stoltz uses the acronym SOPA seven times in the first four paragraphs, which might lead the reader to think that the subject of the article has something to do with SOPA.  Of course, it has nothing to do with SOPA.  Heck, SOPA didn’t even have anything to do with SOPA, but let’s not worry about that right now.

What the knights at the EFF are saying SOPA about at the moment is the fact that as part of the major motion picture studios’ litigation against the pirate network MovieTube, they are seeking injunctive relief that would include disabling domains registered to the network and the discontinuation of services to MovieTube sites by third-party providers.  Granting such an injunction, according to the EFF, is reason to say SOPA, meaning that such a ruling by the court would inevitably lead to crippling the Internet as we know it.  Sound familiar?

But true to form for the EFF, Stoltz neither acknowledges that MovieTube is doing any tangible harm nor the fact that the relief being sought by the studios is far from unprecedented legal territory.  It is well-settled law that injunctions against a named party, which is directly harming a plaintiff, can also bind third parties that may be contributing to, or facilitating, ongoing harm.  And although this principle is nothing new in legal terms, it is a chronic sticking point for Internet companies because they are frequently facilitating harm, whether they mean to or not.  But, in another case involving injunctive relief, the British Columbia  Supreme Court demonstrated in the Equustek case that Google may be ordered to de-index on a global basis all sites (and not just pages) belonging to a business that was engaged in counterfeiting the plaintiff’s products and using its websites to hijack Equustek’s likely customers.  And still the Internet hums along.

Of course, Silicon Valley doesn’t like this sort of thing, but not because of anything to do with your freedoms so much as with their bottom line. News flash:  industries don’t like regulation.  And so, the Web industry likes to portray every prospect of this type of legal action — especially when it involves the motion picture industry — as the beginning of the end.  They say SOPA, and hope the peasants cringe. (And make no mistake, to the wealthy .01 percent of that industry, we are all peasants.) Thus, the EFF invests tremendous energy in this strategy, breathlessly warning us about the inevitable doom that will surely follow if, heaven-forbid, the rule of law might apply to trade across our precious tubes.

Stoltz’s post implies a lack of due process and a dangerous slippery slope, despite the fact that injunctions are court ordered on a case-by-case basis.  And just because an entity is granted this type of relief in one case does not mean it will then have free reign to seek random, baseless injunctions at will. (Or is the real problem that the Internet companies are acutely aware of how much global traffic is driven by piracy, that they really don’t want to go there; and they can always rely on millions of people who like free media to help evangelize their erroneous legal claims?)  If so, they should at least call it what it is and lay off the pretensions to be upholding some principle for the greater good.  Yet,  Stoltz writes:

“If the court signs this proposed order, the MPAA companies will have the power to force practically every Internet company within the reach of U.S. law to help them disappear the MovieTube websites. Regardless of whether those sites are engaged in copyright infringement or not, this is a scary amount of power to confer on the movie studios. And it looks even worse at scale: if orders like this become the norm, Internet companies large and small will have to build infrastructure resembling the Great Firewall of China in order to comply.”

Of course that makes perfect sense. Because what could filmed-entertainment companies want more than a completely dysfunctional Internet and a “wall” of censorship? Filmmakers love censorship! And they certainly don’t want their products to be seen by the paying public via the growing number of legal streaming services that are entirely dependent upon a well-functioning Internet. Naturally, the MPAA is looking for a legal wooden shoe that it can wield to the ultimate sabotage of these distribution portals for studio products.  And in a related story, the Teamsters are going to lobby to defund highway maintenance.

But to put it less sarcastically, if Internet companies truly cannot help to foster a web ecosystem that honors certain rights, including intellectual property rights, without “building a Great Firewall of China,” then maybe they just suck at what they do.  Because, in the long run, we don’t need an Internet that remains the proverbial Wild West, we need one that matures into a vital component of a functioning civilization.

Anyway, if you want a proper (and admittedly calmer) legal analysis of the relief being sought by the studios in this case, I recommend this post by Terry Hart because he actually knows, y’know, legal stuff. I’m mostly being a smart-ass because this kind of fear-mongering is at least as offensive as it is repetitive.  Above all, I resent the tone the EFF consistently takes with regard to piracy — as though it’s some adolescent prank that doesn’t hurt anybody. I and others have cited volumes of data that proves piracy is a big, black-market business that causes tangible and multi-faceted harm to real people.  I will also add that during the anti-SOPA campaign, organizations like EFF, as well as the Googles of the world, implied in their populist messaging that they cared about ending piracy, but the bills SOPA and PIPA were too flawed.  Where in the last four years, have we seen any substantive indication that anyone speaking for the Internet was remotely sincere when they made those statements?

So, if as a general rule, any of EFF’s writers framed these articles by stipulating that a site like MovieTube is — and damn-well should be — illegal and deserves to be shut down, then by all means they should play the role of the public advocate they claim to be.  Instead, the organization’s thesaurus appears to favor repeating SOPA as often as possible and using calculated, provocative language, like the way Stoltz uses the word disappear as a verb to imply that MovieTube is akin to a political dissident being silenced by an authoritarian government. (If nothing else, this kind of rhetoric is just irresponsible in a world with real dissidents and real tyrants.)  For all the attorneys on staff at the EFF, they rarely seem to produce an even-toned, nuanced analysis for public consumption regarding cases of this nature.  I guess it’s just easier to be The Knights Who Say SOPA.  Maybe if somebody brings them a nice shrubbery, they’ll knock it off.

*To be fair, and at last count, the EFF had what I counted as over 40 attorneys spread among staff, board, special counsel, and advisors, which is not exactly the same as 40 staff attorneys.  But in the spirit of this post, suffice to say, they have a buttload of lawyers to keep coming up with the same talking point over and over.

NOTE:  Within an hour or so of TorrentFreak citing this article, I received comments from anonymous trolls with handles including Adolf Hitler and Osama Bin Laden calling me “faggot.”  I think the EFF should be proud to have such erudite supporters.  I don’t know what I was thinking by criticizing their rhetoric, which has clearly elevated the debate.