Tag: Lenz v UMG

Solicitor General Says No Cert for “Dancing Baby” Case

 SCOTUS Photo by jgroup

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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.