Dancing Baby Video Fight Heads Back To Court: Will A Bogus Takedown Finally Get Punished?

from the that-would-be-quite-a-thing dept

Yesterday, our most popular post involved a story of a questionable DMCA takedown notice leading to the shutdown of 1.5 million sites. This was not a first. We've written numerous times about bogus DMCA notices and the damage they can cause by censoring works without an adversarial hearing first. And one thing that always comes up is the question of whether or not there's punishment for bogus DMCA takedowns. In general, the answer has been no. There may be a few very specific circumstances under which whoever signed off on a bogus DMCA notice could be charged with perjury, but the specifics there are quite limited.

Now, one of the more famous cases concerning bogus DMCA takedowns -- which started all the way back in 2007 -- is heading back to court today, to see if Universal Music can be punished for issuing a bogus takedown on a woman, Stephanie Lenz, for posting a 30-second video of her toddler son dancing to Prince's "Let's Go Crazy." If you haven't seen the video, the song is barely audible, and the whole thing is a 29-second clip. There is a strong fair use argument.
The case has been taking the slow route through the court system, with Lenz (and the EFF) suing Universal Music for taking down the video without considering the possibility of fair use. Universal claimed that fair use is merely a defense, and thus there is no obligation to consider fair use first. The court, thankfully, disagreed, and said that damages were available, but quite limited.

And now... the arguments are kicking off over whether or not Universal Music should get in trouble for its actions. UMG, for its part, argues that it shouldn't have to run everything through a fair use filter first, and that even if it was required to do so, it probably couldn't. EFF points out the ridiculousness of saying there are no consequences to bogus tweets.
"Parents are allowed to document and share moments of their children's lives on a forum like YouTube, and they shouldn't have to worry if those moments happen to include some background music," said [EFF IP Director Corynne] McSherry. "Content companies need to be held accountable when their heavy-handed tactics squash fair use rights. We hope the judge gives Ms. Lenz the closure she deserves, and shows content owners they can't trample over users' rights."
My guess is that the court won't punish UMG, arguing that it did all it needed to do. But it would be nice to actually put some teeth into rules that prevent abusing the DMCA to silence others' speech illegally.

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  1. icon
    average_joe (profile), 18 Oct 2012 @ 4:44pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Hyperbolic Mike!

    Great post, Karl. Thanks for all the cites. You're nothing if not thorough and thoughtful.

    I think I understand the confusion now. To the extent there is an implied, fundamental right to the freedom of speech, it's never been the case that anyone had to cite such an unwritten right. The reason is simple: Free speech is guaranteed by the First Amendment explicitly. It's not some unenumerated, implied right. It's a right that's spelled out in the Constitution. As such, there's never been a need to explore the extent that the right would exist if it weren't specifically enumerated. The First Amendment is just the statutory codification of the right to freedom of speech.

    So while in some sense there is the right to free speecdh in the absence of the constitutional guarantee, we don't think of it that way since the right is explicitly guaranteed in the Constitution.

    Make sense?

    I don't doubt there is some implicit right to freedom of speech. The point is that there's no need to go there since the right is mentioned by name in the Constitution. One would NEVER go to court and sight the unwritten right to freedom of speech that you're describing because there'd be no reason to.

    Not only that, the unwritten right to freedom of speech is NARROWER than the explicit right in the Constitution. No court that I'm aware of has ever recognized an implied right to freedom of speech that is BROADER than the explicit one in the Constitution. Once the Constitution gives you a right, and this is a point I'm not sure you understand, that right is coextensive at best with the unwritten one.

    For example, you can't go to court and argue successfully that the unwritten due process clause gives you rights that the actual, written due process clause gives you. In other words, the fact that there may be some unwritten right to free speech is irrelevant. It can never give you a right that you don't already have because of the ACTUAL free speech right.

    So when you talk about some unwritten free speech right, I don't see the point. You're describing some right that we might have but for the fact that we don't. It's a diversion done Irrelevant Lane.

    Well, for one thing, we the people can advocate for limiting statutory rights by law.

    And lots of people can and do advocate for constitutional change as well. I think you are misunderstanding the issue. It matters not that there is some undefined, implied, extra-constitutional right to free speech. Nobody will ever have any free speech rights in this country that are not grounded in the First Amendment.

    And you still haven't explained how considering human rights more important than statutory rights is grounds for idiotic mockery.

    You're trying to frame free speech as a human right that supersedes copyright law in the U.S. It doesn't work that way. Congress has the constitutional authority to promulgate copyright laws. Copyright laws obviously clash with the First Amendment. The Supreme Court has addressed the issue and held that as long as the substantive copyright statute does not discard idea-expression dichotomy and fair use, then that statute will get only rational basis scrutiny. That is the supreme law of the land right now. If you go to court and challenge a substantive copyright statute on a First Amendment challenge, that is the test that will be used. What is perfectly clear is that the substantive copyright laws we have right now are constitutional. That means they don't violate the First Amendment. And more importantly for our purposes, the fact that the right to freedom of speech is to some extent implied is irrelevant: the full extent of the right is explicit in the First Amendment and the balancing between that right and copyright has already been done.

    You're pointing out something that has no practical application. Do you have the right to freedom of speech? Yes. That right is encompassed, in toto, by the First Amendment.

    That said, I hope you see that whether the right is thought of as an implied, fundamental right or as an explicit right is irrelevant. Either you have the right or you don't. And if you have the right in the U.S., the way you prove that you have the right is the First Amendment.

    (Sorry, but I gotta run. No time to proofread this.)

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