New Decision In Dancing Baby DMCA Takedown Case -- And Everything Is Still A Mess

from the didn't-really-fix-anything dept

I got very excited yesterday when I saw a court system alert that there was a new decision out in the appeal of Lenz v. Universal. This was the Dancing Baby case where a toddler rocking out to a Prince song was seen as such an affront to Prince's exclusive rights in his songs that his agent Universal Music felt it necessary to send a DMCA takedown notice to YouTube to have the video removed. Heaven forbid people share videos of their babies dancing to unlicensed music.

Of course, they shouldn't need licenses, because videos like this one clearly make fair use of the music at issue. So Stephanie Lenz, whose video this was, through her lawyers at the EFF, sued Universal under Section 512(f) of the DMCA for having wrongfully caused her video to be taken down.

Last year, the Ninth Circuit heard the case on appeal and then in September issued a decision that generally pleased no one. Both Universal and Lenz petitioned for the Ninth Circuit to reconsider the decision en banc. En banc review was particularly important because the decision suggested that the panel felt hamstrung by the Ninth Circuit's earlier decision in Rossi v. MPAA, a decision which had the effect of making it functionally impossible for people whose content had been wrongfully taken down to ever successfully sue the parties who had caused that to happen.

Although the updated language exorcises some unhelpful, under-litigated ideas that suggested automated takedown systems could be a "valid and good faith" way of processing takedowns while considering fair use, the new, amended decision does little to remediate any of the more serious underlying problems from the last version. The one bright spot from before fortunately remains: the Ninth Circuit has now made clear that fair use is something that takedown notice senders must consider before sending them. But as for what happens when they don't, or what happens when they get it wrong, that part is still a confusing mess. The reissued decision doubles-down on the contention from Rossi that a takedown notice sender must have just a subjectively reasonable belief – not an objectively reasonable one – that the content in question is infringing. And, according to the majority of the three-judge panel (there was a dissent), it is for a jury to decide whether that belief was reasonable.

The fear from September remains that there is no real deterrent to people sending wrongful takedown notices that cause legitimate, non-infringing speech to be removed from the Internet. It is expensive and impractical to sue to be compensated for the harm this censorship causes, and having to do it before a jury, with an extremely high subjective standard, makes doing so even more unrealistic.

It's possible that the Ninth Circuit may actually see the plaintiff as having been vindicated here; after all, she may still go to a jury and be awarded damages to compensate her, potentially even for the attorneys' fees expended in fighting this fight. But note that the issue of whether she is due anything, and, if so, how much, has not yet been fully litigated, despite this case having been going on since 2007! Not everyone whose content is removed is as tenacious as Ms. Lenz or her EFF counsel, and not everyone can even begin to fight the fight when their content is unjustly removed.

Furthermore, sometimes the value in having speech posted on the Internet comes from having it posted *then*. No amount of compensation can truly make up for the effect of the censorship on a speaker's right to be heard when he or she wanted to be heard. Consider, as we are in the thick of election season, what happens when election-related speech is taken down shortly before a vote. As was pointed out in several amicus briefs in support of the en banc rehearing, including one I filed on behalf of the Organization of Transformative Works and Public Knowledge, such DMCA-enabled censorship has happened before.

Suing won't solve that problem, but at least the threat of a lawsuit might make someone think twice before sending a wrongful takedown notice. But if a lawsuit isn't a realistic possibility then that deterrence won't happen. What the parties supporting the plaintiff have been worried about is that the DMCA allows for an unprecedented form of censorship we would not normally allow. Think about it: if there were no DMCA then people who wanted content removed from the Internet would have to file well-pleaded and well-substantiated lawsuits articulating why the content in question was so wrongful that an injunction compelling its removal was justified in the face of any defense. In other words, without the DMCA, the question of fair use would get considered, and it would get considered by a judge.

But thanks to the DMCA would-be censors can save the time, cost, and burden of having to make sure they got the fair use question right before causing content to be removed – and very likely with a complete lack of judicial oversight to hold them to account if they didn't. No judge may ever scrutinize their decision to ensure that they didn't abuse the shortcut to censorship to the DMCA affords them. Instead, Thursday's decision only further ensures that this sort of abuse will continue unabated.

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  • icon
    Mason Wheeler (profile), 18 Mar 2016 @ 1:16pm

    Think about it: if there were no DMCA then people who wanted content removed from the Internet would have to file well-pleaded and well-substantiated lawsuits articulating why the content in question was so wrongful that an injunction compelling its removal was justified in the face of any defense. In other words, without the DMCA, the question of fair use would get considered, and it would get considered by a judge.

    ...which is what I've been saying all along. The DMCA takedown system takes a legal issue and allows people to skip Due Process, throw the Presumption of Innocence right out the window, and skip straight to sentencing. It's an abomination against our most important legal traditions, and it needs to be repealed.

    reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 18 Mar 2016 @ 1:18pm

    Digital Millennium Censorship Act

    There's a REASON it's called the DMCA.
    But thanks to the DMCA would-be censors can save the time, cost, and burden of having to make sure they got the fair use question right before causing content to be removed.
    But isn't exactly what it is supposed to do?

    The text of the DMCA was written by none other than Jack Valenti himself. Then head of the MPAA. You the guy: the VCR is to the movie studios as the Boston Strangler is to the woman alone. That guy. Wrote the DMCA. Congress rubber stamped it. I wonder if they read it?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Mar 2016 @ 4:30pm

      Re: Digital Millennium Censorship Act

      No, it's SUPPOSED to allow the COPYRIGHT holder to take down a work that is violating their copyright. It's not supposed to provide an avenue for censoring non-infringing speech.

      reply to this | link to this | view in chronology ]

      • icon
        DannyB (profile), 21 Mar 2016 @ 2:54pm

        Re: Re: Digital Millennium Censorship Act

        So you're saying it is SUPPOSED to do the thing it does not do.

        And it's not supposed to do the one thing that it is actually used for.

        Wow, what a great law.
        And if it's not supposed to be for censorship, then what would be the objection that Fair Use MUST be considered. Or to a statutory penalty of $150,000 per bogus DMCA takedown where the supposed owner that doesn't actually own a copyright files a DMCA under penalty of perjury.

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  • identicon
    Anonymous Coward, 18 Mar 2016 @ 4:54pm

    It's funny how what you wrote is true from the other side--you know, the one you hate with every cell in your body. Changes in all caps:
    The fear from September remains that there is no real deterrent to people sending wrongful COUNTER-notices that cause ILLEGITIMATE, INFRINGING speech to NOT be removed from the Internet. It is expensive and impractical to sue to be compensated for the harm this INFRINGEMENT causes, and having to do it before a jury, with an extremely high subjective standard, makes doing so even more unrealistic.

    Furthermore, sometimes the value in having speech REMOVED on the Internet comes from having it REMOVED *then*. No amount of compensation can truly make up for the effect of the INFRINGEMENT on a speaker's right to be heard when he or she DIDN'T WANT to be heard.

    Suing won't solve that problem, but at least the threat of a lawsuit might make someone think twice before sending a wrongful COUNTER-notice. But if a lawsuit isn't a realistic possibility then that deterrence won't happen. What the parties supporting the DEFENDANT have been worried about is that the DMCA allows for an unprecedented form of INFRINGEMENT we would not normally allow. Think about it: if there were no DMCA then people who wanted content removed from the Internet would have to file well-pleaded and well-substantiated lawsuits articulating why the content in question was so wrongful that an injunction compelling its removal was justified in the face of any defense. In other words, without the DMCA, the question of INFRINGEMENT would get considered, and it would get considered by a judge.

    But thanks to the DMCA would-be INFRINGERS can save the time, cost, and burden of having to make sure they got the INFRINGEMENT question right before causing content to NOT be removed – and very likely with a complete lack of judicial oversight to hold them to account if they didn't. No judge may ever scrutinize their decision to ensure that they didn't abuse the shortcut to INFRINGEMENT to the DMCA affords them. Instead, Thursday's decision only further ensures that this sort of abuse will continue unabated.
    The DMCA works both ways you know, and the subjective standard applies to abusive senders of counter-notices as well. And this creates a very high burden for copyright owners to show the counter-notice was sent in bad faith. You know this, of course, you just don't care. Just like you don't care about the millions upon millions upon millions upon millions of intentional infringements--people making the conscious decision to violate other people's rights. You will never, ever say anything bad about them. So, yeah, cry about your dancing baby case. That tiny little handful of "abuse" is really important. That's the only thing worth writing about.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Mar 2016 @ 6:08pm

      Re:

      Have a DMCA vote, then.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Mar 2016 @ 6:37pm

      Re:

      It's funny how you almost had a point.... Then right back to childish insults. It's almost like you've got no actual argument other then the big bad pirate is being mean to me.

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 19 Mar 2016 @ 3:27am

      Re:

      Risk to file a bogus DMCA claim: None.
      Risk to contest a bogus DMCA claim: Hand over your personal contact info and open yourself up to be dragged into court, where the other side can simply drop the case the second they feel like it might not go their way, leaving you with nothing but the legal bills.

      Result of a valid DMCA claim: Content is removed.
      Result of a bogus DMCA claim: Content is removed.

      Penalty for a valid DMCA claim: None.
      Penalty for a bogus DMCA claim: None.

      Effort required to file a DMCA claim: What effort, just get a bot to do it.
      Effort required to restore wrongly accused content after it's taken down: Dependent upon hosting service, but you can bet it's going to take work and cannot be automated.

      Having a fraudulent claim made against something you post has consequences, making a fraudulent claim does not. But by all means tell me how very hard those poor copyright owners have it, having to have bots automate takedown claims on their behalf.

      I'd have a lot more sympathy for those filing DMCA claims if they cared one bit about 'collateral damage' and making sure that they only targeted guilty individuals and only removed infringing stuff, rather than the 'file claims against everything and who cares about the rest' tactics they currently use.

      While I don't engage in piracy myself the actions of the 'anti-piracy' groups has me completely and utterly indifferent to their plight, real or imaginary, so if a change of some sort made things harder, if not flat out impossible for them? Tough.

      reply to this | link to this | view in chronology ]

    • identicon
      Bruce C., 19 Mar 2016 @ 5:39am

      Re:

      From a purely procedural standpoint a counter-notice is made under penalty of perjury while a DMCA infringement notice is not. So it's a lot easier to go after a fraudulent/invalid counter-notice -- all you have to prove that any statement made in the counter notice is knowingly untrue.

      But even more importantly, any conflict over removal or retention of content under the DMCA must balance the constitutional principle of freedom of speech/the press vs. the takedown remedies available under the DMCA. The constitution is supposed to trump the law if the law makes it too easy to suppress speech using takedowns. There is a constitutional mandate to allow copyright, but there is no such mandate that copyright enforcement should take the form of a DMCA takedown.

      reply to this | link to this | view in chronology ]

  • identicon
    Quiet Lurcker, 18 Mar 2016 @ 4:54pm

    There's a very simple fix here, and you wouldn't even have to change substantive portions of the DMCA.

    At the notice and take-down stage, the rights holder has to prove to the party receiving the complaint that a) the materials were reviewed by a human being; and b) that the review found not the slightest evidence of fair use. The content creator then has an opportunity to demonstrate that their content is fair use. And that can take as little as context to show that it was news reportage or commentary or whatever else.

    If it gets to the lawsuit stage, with the creator as plaintiff, and the decision goes in favor of the plaintiff, the rights holder AND the recipient of the complaint each must pay the creator 10 times their full legal costs. If it goes in favor of the rights holder, the creator only has to pay a quarter rights holders costs.

    If the rights holder is plaintiff and loses the case, they have to pay 25 times the defendant's full legal costs. If they win the case, they only get a quarter of their costs back.

    And make that non-discretionary.

    The idea here is to make winning one of these cases so hard and expensive for the rights holder that they think three or four times before starting the process in the first place.

    reply to this | link to this | view in chronology ]

    • identicon
      Bruce C., 19 Mar 2016 @ 5:54am

      Re:

      Actually, no. What we need is better automation of legal services that make legal proceedings so cheap and reliable that cost of litigation can no longer be used as a form of intimidation. Heck even a pattern-matching tool similar to ContentID that can be used in favor of counter-claims would be an advancement.

      Imagine an application that allows you to describe your grievance and the party that you wish to sue. It then looks up case law, and presents you with similar cases that won or lost. If you decide to go ahead, it prepares a brief, selects a venue based on your location and that of the other party and files the suit as pro se. Or conversely, you enter an existing case ID and identify the response you want to make and the AI prepares the brief for you.

      Technologically this is not that far away, but the bar association will be fighting it for decades afterward. Eventually it could reach the point where the judges could be replaced by AIs as well, which would bring the cost of legal proceedings even lower. Nothing would level the legal playing field between the powerful and the poor like that.

      reply to this | link to this | view in chronology ]

  • identicon
    Wendy Cockcroft, 29 Mar 2016 @ 5:46am

    No amount of compensation can truly make up for the effect of the censorship on a speaker's right to be heard when he or she wanted to be heard

    There is no Constitutional right to be heard. To speak, yes, but not to be heard. I can list a parade of horribles if that were actually the case if you like but I'm sure you can work it out for yourself.

    RE: the dancing baby, that's not just fair use, it's free advertising for Prince, so not only did it do him no harm, I daresay it made him some sales.

    RE: the harm done, it is done to all of us with Lenz as the example of how gatekeepers gain and maintain control over our right to freedom of expression. As I've said till I went blue in the face (it's currently an alarming shade of purple), this is what happens when you allow the maximalists to get away with treating a temporary monopoly privilege as a property right. These people don't do nuance and they've never heard of the middle ground. Stop calling copyright "intellectual property," it cedes control of the narrative to them and puts us on the back foot.

    reply to this | link to this | view in chronology ]


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