Tag: fair use

Phoenix Center Responds to Singapore Fair Use Study

In 2012, a report was published in the online journal LAWS entitled A Counterfactual Impact Analysis of Fair Use Policy on Copyright Related Industries in Singapore.  I know. Sounds like a real page-turner for the general reader, right? To be sure, most of us are not schooled in the arcana of statistical economic analysis, but suffice to say the report, written by Roya Ghafele and Benjamin Gibert, concluded (or at least implied) that expansion of the fair use doctrine in the Singapore Copyright Law in 2005 resulted in economic growth in what the researchers identified as the “copying technology industries” (e.g. disk drives, CDs, etc.) and with no detrimental impact to the copyright industries.  When the report was published, it was predictably seized upon by Mike Masnick as proof of one of Techdirt’s core tenets, namely that “less copyright is always economically beneficial”.

But an analysis published yesterday by George S. Ford, PhD at the Phoenix Center for Advanced Legal & Economic Public Policy Studies, has called the Singapore Study a work of “stunningly poor quality”. Citing numerous flaws in methodology, he insists that the report’s conclusions should not be considered instructive to copyright law in Singapore or anywhere else.  In fact, the reason I qualified the study’s conclusion in the previous paragraph is that apparently Ghafele and Gibert themselves do not claim to identify a causal relationship between Singapore’s revised fair use doctrine and an increase in sales in “copying devices”. Ford argues this flaw alone is sufficient to label the entire study as “worthless to policymakers”. Naturally, one must be careful about taking sides among economists, whose stock and trade is critiquing one another’s methods that the rest of us don’t really understand.  Nevertheless, Ford’s critiques ought to at least raise questions among us laymen when he says unequivocally …

“While evidence on fair use policies is welcome and critical to informed policy reform, Ghafele and Gibert’s empirical analysis is so poorly done that it fails to shed any light on copyright laws. Governments reviewing their copyright laws should dismiss the Singapore Study as junk science.”

Ford’s criticisms include Ghafele and Gibert’s failure to employ a proper control group, to account for differences in scale among the technology businesses aggregated into the study, and to exclude from their analysis catalytic factors other than changes to fair use—not the least of which were other 2005 amendments to Singapore’s Copyright Law. As stated, I cannot presume either to critique or defend the computations applied by Ford, but what I can comment on is this aspect of his conclusion:

“… the expanded fair use policy was incorrectly interpreted by consumers as a license to pirate and distribute intellectual property without consequence. Less than a decade after the new fair use policy was implemented, Singapore amended its copyright law to address widespread digital piracy.”

Indeed. Fair use has been so chronically misrepresented in the public dialogue that the principle has been broadly interpreted as the antithesis of copyright, which is simply incorrect. In fact, this issue points to one of the reasons I find the hypothesis of the Singapore Study a bit odd in the first place. An attempt to quantify the extent to which Singapore’s fair use revisions acted as a market catalyst at all seems to treat the doctrine as though it were a universal exception to copyright rather than a narrowly defined, case-by-case, limitation—one that is in fact expected to spawn some portion of new copyrightable works. For instance, if 100 fair uses are made and half are for new works that have their own copyrights, that’s 50 new copyrights supported by fair use doctrine. So, would that be a net win for copyright or for fair use?  The question is absurd because fair use is a part of copyright law. If fair use were indeed the opposite of copyright and without reasonable limitations, then it would simply nullify copyright, taking the concept of fair use with it across the event horizon into irrelevance.

More specifically, fair uses in Singapore, which they call fair dealing, are conditional just like they are in the US. The first four of five factors Singaporean courts consider in a fair dealing defense are modeled almost verbatim on the four factors applied in our courts. Like our Copyright Act, Singapore’s fair dealing statutes seek to define the specific conditions under which there are limitations on exclusive rights; and most encouragingly, those statutes appear to have the same intent to protect free speech, which was the original reason we codified fair use in the 1976 law. So, the decision to examine the effect of Singapore’s fair dealing doctrine on the market for devices and media used for data storage seems inscrutably haphazard.

After all, any number of factors may increase the sale of disk drives, recordable CDs and DVDs, etc., including rampant piracy itself, which is outright infringement and not a fair dealing.  More acutely, as Ford mentions, 95% of Singapore’s electronics production is exported. Singapore is a tiny market (pop. 5.5 million) whose economy includes a robust wholesale and retail sector shipping to foreign markets and catering to a very large volume of tourist/shoppers from the region. In other words, Australians traveling to Orchard Street to buy hard drives tells us nothing at all about Singapore’s fair dealing statutes in its copyright law. So, if Ford and other critics are right that the Singapore Study does not account for this, that is a considerable flaw in the research.

Additionally, an analysis in the sales of electronic hardware used for copying and storing digital media does not appear to address any of the questions being asked about fair use doctrine in the age of the Internet. If there is merit to that conversation, it would rationally involve—and in fact does involve—a discussion of platform-based uses like YouTube, blogs, or fanfic sites that encourage remix; or we may consider the casual sharing of content via social media; but this line of investigation would seem to consider fair use’s initial intent to protect free speech more than an inquiry into broader economic benefits. I am skeptical that new, platform-based uses—however common and ubiquitous they may be—provide a rationale for “expanding” our own doctrine; but at least these types of uses do represent changes in the nature of how works are used, which is not the case with regard to storage media.

Meanwhile, the general consumer in our market appears to be moving away from a paradigm of storing media at all, thanks to the convenience and low cost of streaming and the availability of cloud-based options in lieu of local devices. (Note the lack of disk drive in your new computer.) So, if sales of certain recordable media were to decline over the next five years, what would that tell us about our fair use doctrine, which has been law for 40 years?  Not much, I think.  It’s simply an odd metric to examine—a bit like measuring bottled water sales in order to determine how many Americans are going to the gym and then to draw conclusions about our overall cardio-vascular health.

While limitations on copyright’s exclusivity, including fair use, can produce market benefits, it is always necessary to seek a balance. As the market evolves, the contours of fair use may indeed shift, though the more those contours cease to define boundaries at all, the more the doctrine is stripped of its significance.  As such, neither professional nor amateur analysis should confuse the policy discussion by asking the wrong questions.

Google et al Seek Ruling with Fair Use Axe to Grind

What do a bunch of puppies, a pretty woman, a dancing baby, Demi Moore, some Rastafarians, and 20 million books all have in common?  They all refer to prominent, copyright-related cases* from which a content creator could—if he has nothing better to do—learn something about fair use doctrine. But even if an independent artist were to study Rogers v Koons (1992) right through the most recent ruling by the 2nd Circuit Court of Appeals in Google v Authors Guild, I suggest that what he is most likely to discover is that fair use is a highly subjective component of U.S. copyright law.  In fact, the subjectivity is part of what makes the principle, and the cases in which it is argued, so interesting—at least to me.

As many readers know, fair use was codified into law in 1976. Functioning as a limitation to copyright, its initial intent was to allow the use of a protected work, regardless of the author’s permission, for the purpose of commenting in some manner on the work itself.  Although the doctrine has evolved to include uses that transform works for purposes other than commentary (e.g. Google Books), the underlying need for the fair use limitation was to maintain balance between free speech and copyright. If an author were able to enforce his copyright in order to stifle a use necessary to comment on his expression or that transforms his expression in some useful way, then free speech may be chilled or copyright may fail in its purpose to promote expression or progress. But drawing these contours is, of course, only possible on a case-by-case basis. When a defendant argues  fair use in a copyright infringement suit, a panel of judges will consider these four factors:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit purposes.
  2. The nature of the copyrighted work.
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole and relative to the purpose of the new work or use.
  4. The effect of the use upon the potential market for the value of the copyrighted work.

Even a casual glance at these criteria should tell independent creators what their attorneys would tell them, if they had attorneys—that there are no bright lines in fair use defenses.  Each case is distinct and highly susceptible to human interpretation. For example, I bet most laymen—me included—would have a tough time squaring the 1992 decision rejecting artist Jeff Koons’s fair use defense for his use of Art Rogers’s “Puppies” photograph with the 2013 decision affirming Richard Prince’s fair use defense for his use of Patrick Cariou’s Rastafarian photos. The reason I cite these two cases is that when considering the fourth factor in the latter, the panel determined that because Prince’s market is the fine art world and Cariou’s market is not, the potential market harm to the original photographs would be unlikely.  Aside from the fact that this contemporary ruling places judges in the undesirable role of cultural critics, the point I’m making is that the same distinction could have been made between Jeff Koons and Art Rogers, but it was not.

Forgive that detour, but I’m trying to underscore that, although there are some fairly simple circumstances in which a rights holder might make a reasonable assessment about a fair use of her work, case law demonstrates that there is nothing universally objective about the doctrine—perhaps especially when the use is artist to artist.  In fact, my colleague Terry Hart tells me that between 1978 and 2005, 33.8% of District Court fair use decisions were overturned on appeal. And there’s a reason why the landmark case involving 2 Live Crew’s parodic version of the song “Pretty Woman” went all the way to the Supreme Court:  because fair use is complicated.  So, the suggestion that a non-attorney, creator can be expected to make an “objective” assessment of a possible fair use defense prior to sending a DMCA notice to take down an otherwise infringing use of her work online is an exercise in metaphysics, if not outright sorcery.

My apologies at this point for the amount of amateur legal analysis in this piece—something I normally avoid—but there’s no other way to tell this story.

The reason I’m stressing the subjective nature of fair use is that this week an amicus brief was filed on behalf of Google, Twitter, WordPress, and Tumblr asking the Court of Appeals for the 9th Circuit to overturn—not its decision—but its rationale in the 2004 case Rossi v MPAA.  And it appears, based on the number of references to fair use in the brief, that they are seeking this revision because it might strengthen the Internet industry’s position regarding the ruling just last month in Lenz v UMG, a.k.a. the “Dancing Baby” case. (This involves the temporary takedown from YouTube of a home video depicting Ms. Lenz’s baby dancing to Prince’s “Let’s Go Crazy,” which occurred in 2007 and has been litigated by the EFF ever since.)

The recent Lenz ruling by this same court affirmed that a rights holder, prior to sending a DMCA takedown notice, must consider whether or not a use would be judged fair but that the consideration may be “subjective,” thereby rejecting the EFF’s argument in that case for an “objective” standard. So, it’s interesting that the Internet companies named in this brief are seeking a revision to the rationale in Rossi, in which the court also applied a “subjective” standard, but in a lawsuit that had nothing whatsoever to do with a fair use defense.  So, why seek the new ruling in Rossi instead of Lenz?  Because in a weird way, it might work.  But not necessarily.

In Rossi v MPAA, Michael Rossi claimed that the Motion Picture Association wrongfully used the DMCA to shut down his site internetmovies.com.  The takedown was issued because the site had advertised that full-length movies could be downloaded from the portal, though this turned out not to be true.  Rossi was lying to users (presumably in order to generate traffic), and the MPAA did not confirm whether or not his platform actually made movies available before they sent the takedown notice.  As a result, Rossi sued MPAA for a variety of injuries stemming from its alleged abuse of DMCA, but the court held that MPAA had acted in good faith in accordance with the DMCA and so rejected all of Rossi’s claims.

This new amicus brief filed on behalf of Google et al, states that the outcome of Rossi is correct but that the court should “take this opportunity to clarify the law and hold that that the good faith requirement in Section 512(c)(3)(A)(v) encompasses an objective standard with respect to whether use of a copyrighted work is ‘authorized by law.’” In theory, if these Internet companies can convince the court to affirm an “objective” standard in Rossi, the revision could perhaps be applied to the decision in Lenz and then more broadly assert that any rights holder must “objectively” consider fair use before issuing a takedown notice, or risk possible litigation for wrongful takedown.

But even if the court were to revise its ruling to affirm an “objective” standard in Rossi, any reasonable person should recognize that the additional burden on the MPAA in that case would be a consideration that is, in principle, objectively possible (i.e. they might have been able to confirm whether or not Rossi’s site was actually making movies available illegally).  But, in a given situation in which a rights holder contemplates issuing a takedown notice, there are almost no objective criteria (i.e. evidence) by which he can consider whether or not the recipient of the notice might present an effective fair use defense. (As addressed in this post about an artist friend of mine, fair use confuses people with the best intentions.)  The dynamic and interdependent nature of the four factors alone should demonstrate to any reasonable individual that fair use is a highly subjective, case-by-case doctrine.

More specifically, the “subjective” ruling in Lenz refers to the automated notice and takedown procedure, typically used by major rights holders like UMG, coupled with an algorithmic (i.e. imperfect) process to assess likely fair uses. The court held that this “subjective” automation meets the standard of a good faith effort, which seems only reasonable in light of the tens of millions of rightful DMCA takedown notices that are sent out by major rights holders every month. And that brings us to the heart of the matter …

Can we address takedown abuse without improperly burdening rights holders?

Ostensibly, the aim of this amicus brief is to address the problem of abusive takedown; and the authors state their broad concern about the “subjective” standard thus:

“… 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, see 17 U.S.C. §§ 107–123, because the less they know, the more leeway they would have to send takedown notices.”

Perhaps there is some merit to this anxiety, but I am doubtful that the solution will be found in seeking the “objective” standard revision in Rossi. After all, the takedown of Ms. Lenz’s video did not occur due to ignorance of the law; the video was restored to YouTube according to DMCA procedures; and it was the EFF that decided to spend the last eight years suing UMG because the case appears to have provided a pathway to reshape the law behind the PR veil of “big mean corporate rights holder picking on an innocent baby.” As I’ve said in the past, there are better examples of DMCA takedown abuse, but not so many with headliner names like Prince.

No question that DMCA takedown abuse does happen, though it is dramatically outweighed by the number of legitimate takedown notices that are sent and resent in a nearly futile attempt to stop countless incidents of actual infringement. The amicus brief cites several exemplary takedown abuses—many of which would likely merit a fair use defense—issued by individuals or entities who either don’t understand copyright or who know exactly what they’re doing and are abusing copyright in an attempt to censor criticism or commentary. But these examples are not an indictment of the purpose of copyright; and rights holders with legitimate claims should not be made to bear the burden of mitigating abuse by a minority of bad actors—least of all with the purpose of making DMCA procedures easier or cheaper for OSPs. In fact, the weakness of the stated motivation for this amicus brief is written in the document itself and stated thus:

“Google receives hundreds of notices that suffer from similar defects, often repeatedly from the same vexatious submitters, and devotes substantial human and machine resources in an attempt to identify these abusive notices among the tens of millions of DMCA notices that Google processes each month”

Out of tens of millions of notices, Google identifies hundreds of potentially abusive ones from a consistent group of “vexatious submitters.”  Does that not sound on the face of it like an exception to a rule, one that begs for a targeted solution rather than a broad revision of legal standards that may place undue burden on many rights holders?  The Internet industry regularly criticizes proposals for remedies and legal frameworks for being “overly broad.” Yet, the pursuit of this revised standard, seems to be asking the court to use a sledgehammer to swat at flies.  Hundreds of abusive notices out of tens of millions is somewhere in the universe of .003%, and the Internet industry wants us to believe that this is the real problem with DMCA.

It seems to me that the public interest would be best served by Congressional revision of the DMCA in order to mitigate both takedown abuse and safe harbor abuse (though you may hear a collective gasp from Silicon Valley at the suggestion of the latter). In fact the amount of energy and resources the Internet industry has devoted to rewriting Lenz into a story of “abuse” is both revealing and appalling. After all, it is unreasonable to argue that a rights holding entity must be held to a stricter standard of consideration of the legality of a particular use while inadequacies in the antiquated safe harbor provisions necessitate the automated issuing of tens of millions of takedown notices per month.  In other words, if Google et al want rights holders to more carefully consider each infringement, then Google et al should be required to more aggressively reduce the volume of infringement on their platforms down to a manageable scale. Meanwhile, I believe neither the courts nor Congress should amend standards that can in any way increase the challenges already faced by individual and small-entity creators to enforce their copyrights in the digital marketplace. In fact, making that enforcement easier just might benefit everyone.

* In order as referenced: Rogers v Koons; Campbell v Acuff-Rose; Lenz v UMG; Leibovitz v Paramount Pictures; Prince v Cariou; Google v Authors Guild.

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.