We're back again with another in our weekly reading list posts of books we think our community will find interesting and thought provoking. Once again, buying the book via the Amazon links in this story also help support Techdirt.
This week we're talking about a book from a couple of years ago but which still deserves plenty of attention. It's Aram Sinnreich's The Piracy Crusade: How the Music Industry's War on Sharing Destroys Markets and Erodes Civil Liberties. That subhead gives you a good sense of what the book is about, obviously, but I highly recommend reading the whole thing. It's thorough and tremendously thought-provoking, even if you already follow these issues closely.
For nearly two decades we've been discussing this space and trying to get people to understand that the fight over copyright isn't about how artists should get paid -- that tends to just be a smokescreen by the giant gatekeepers who have done an awful lot to screw over actual content creators for years. It's a fight about freedom of speech and civil liberties -- and yet, by turning it into a debate around "piracy" a small conglomerate of gatekeepers have been successful in clamping down on civil liberties, freedoms and free speech. Sinnreich's book does a great job dismantling the mythical arguments from the gatekeepers while highlighting the important civil liberties issues at stake in the copyright fights.
The book is a tremendous contribution to this discussion and a worthwhile read if you want to really understand some of the core issues that underlie the fight over copyright.
Oh, and of course, you can also download the book for free, if you'd like. Vuze is offering it as a bundle that comes with not just the books, but some video lectures by Sinnreich as well. Of course, if you buy it from the Amazon link above, it also helps Techdirt by giving us a cut, but in case you were looking for other options, Vuze has you covered.
Techdirt has been following for a while the copyright levy system in the European Union as it slowly descends into complete chaos, unable to reconcile its analog origins with a digital world where it just makes no sense. A post on the IPKat blog offers something very interesting in this context : a court case that not only quashes Austrian law on private levies, but one that is likely to have important knock-on effects in other EU countries. As the blog post explains, the decision by the Commercial Court in Vienna is just the latest chapter in a long-running saga involving the Austrian collection society, Austro Mechana, and Amazon:
Austro Mechana initiated the proceedings against a number of Amazon entities in October 2007. The main request of Austro Mechana was to oblige Amazon to pay copyright levies for all storage devices sold to customers in Austria. Austro Mechana also filed an information request regarding the quantity and type of storage devices sold to customers in Austria.
Amazon lost at both first instance and in appeal. After that, as suggested by Amazon, the Austrian Supreme Court submitted a request for a preliminary ruling to the CJEU [Court of Justice of the European Union] (September 2011). Amazon had argued that the Austrian law on copyright levies and the procedures implemented by Austro Mechana for the collection of copyright levies complied with neither the [EU's] InfoSoc Directive nor the jurisprudence of the CJEU.
Europe's highest court, the CJEU, handed down its opinion back in 2013. It was largely in favor of Amazon, so the Austrian Supreme Court cancelled all the previous rulings, and sent the case back to the Vienna Commercial Court to consider in the light of the CJEU guidance. The Court of Justice of the European Union does not rule on particular cases, but considers the larger questions of law that are involved, leaving it to local courts to use its published guidance in their subsequent judgments.
There were three main grounds why the Austrian Commercial Court ruled that the entire Austrian copyright levy system had to go. First, it did not provide a proper re-imbursement right: if storage devices are not used for private copying, there must be an "effective" mechanism that allows for re-imbursement of the levy. Austria's system didn't. Secondly, there was no distinction between lawful and unlawful sources for private copying, something else that was required by the InfoSoc Directive. Finally, half of the monies raised by copyright levies were distributed to "social and cultural institutions", rather than to the artists, and that fell foul of the CJEU ruling too.
As the IPKat points out, it is likely that all of these issues affect Germany's copyright levy system, too, so we can probably expect a legal challenge there to be successful. And there's a delightful sting in the tail of the blog post:
The ruling of the Commercial Court of course also raises the question whether dealers, manufacturers or importers may have a claim for repayment of the levies on the principles of unfair enrichment. If such requests would to be made, they might well jeopardise the very existence of Austro Mechana.
Presumably the same would be true in Germany, which would leave the central collecting organization there, the ZPÜ (the Zentralstelle für private Überspielungsrechte) exposed as well. One of the founders of the ZPÜ, and presumably still one of its most important members, is GEMA, well known to Techdirt readers. The possibility that a future court case might force GEMA to pay back a good chunk of all the copyright levies it has received is, of course, a tantalizing prospect.
We've written a couple of articles about the decision by the state of Georgia to sue Carl Malamud for posting its "Official Code of Georgia Annotated" online for people to read. As we noted in a later post, while the legal issues here are potentially complex, the basic moral issues are not: why would you ever want the "official" code of laws to be covered by copyright?
The legal argument in favor of saying the OCGA is covered by copyright is that it's just the "annotations" (which discuss the caselaw related to the legal statutes), and it's developed by a private third party (LexisNexis) which then assigns the copyright to the state. But the very fact that the state repeatedly refers to and points to the annotated copy as its "official" law, and the fact that such annotations help the public more clearly understand the law, makes the argument fairly weak. And now, Malamud has filed his answer and counterclaims to the lawsuit, basically saying: (1) this is not covered by copyright in the first place and if it is then (2) it's fair use and if it's not fair use then it's (3) copyright misuse -- and finally if all that (and a few other things) fail, that stopping Malamud from posting such things would be "inimical to the public interest."
The response also takes at least some issue with the fact that the State of Georgia called Carl Malamud a "terrorist" for daring to publish a copy of its laws. Again, while the specific legal arguments here are interesting, I'm still at a loss as to why the state of Georgia thinks this is a wise use of taxpayer dollars. Even if it "wins," it does not come out of this lawsuit looking good. Bullying the guy who's helping to make your legal code more accessible doesn't seem like a good plan for government.
Last week, we wrote about how the famous hacker magazine 2600 received a copyright threat letter concerning the cover of its Spring 2012 issue (which, we noted, meant that the three-year statute of limitations had passed for a copyright claim anyway). But this was even worse, because the "claim" was over some ink splotches that were in the background of an image that the threat letter claimed copyright over, and which 2600 used a tiny bit of on its cover. Except... that the splotches themselves were actually from a Finnish artist going by the name Loadus, and licensed freely for either commercial or non-commercial use.
The orange is the magazine cover. The purple is the image the copyright threat letter was about and the green is the actual painting that is freely licensed.
There was some confusion over who sent the threat letter, as it officially came from a company called Trunk Archive, but was sent by a company called License Compliance Services (which appears to be a copyright-troll-for-hire business), but also used an entity called Picscout which is owned by notorious copyright troll Getty Images. Either way, after 2600 pointed out how ridiculous this was, License Compliance Services sent a ridiculous email saying the matter had been closed:
Subject: Case #373018082 , Ref #4440-1159-6664
Hello, I just wanted to take a moment to inform you that after further review this matter has been closed.
License Compliance Services
605 Fifth Avenue South, Suite 400
Seattle, WA 98104
For what it's worth, that address is also the address of Getty Images, so it appears that LCS may be a part of Getty Images after all.
Either way, 2600 points out that this response is fairly ridiculous, given that the company just tried to shake 2600 down for a large sum of money based on a totally bullshit claim. And from there, 2600 goes off on a nice and wonderful rant about the stupidity of copyright maximalism, and the belief that everything must be licensed and paid for. It's wonderful and you should read it:
We're talking about the attempts to license everything under the sun, using high technology to match the tiniest of images, and crushing the very concept of fair use. Art has always been derivative and transformative - our cover at the center of all this is a great example of such a work (just not with any of Trunk Archive's material). But by making people look over their shoulders whenever they try to create something unique using elements of existing works, a chilling effect is created that will result in less works being created. This is also bad for the original artist, who is robbed of the opportunity to see how their creation can be adapted and transformed into something completely different. But in the end, we are all hurt by this kind of thing. Creations such as remixes of music, mashups, new arrangements and interpretations, parody, patchworks of images, logos and pictures captured on film, snippets of code - they can all be identified and monetized. That neat little app on your phone that can identify music? Imagine that going out and automatically charging a fee for anyone who has captured a bit of that music on something they created. Every corporate logo you capture in a picture would also have to be paid for. Imagine where this technology can take us in the next few years if this unbridled greed isn't reigned in.
This has nothing to do with art as most any artist will tell you. It's about control and intimidation, using the prospect of payoffs to lure in unsuspecting contributors. With that in mind, the LCS/Trunk Archive slogan of "Creations Are Valuable" makes sense in a much more opportunistic light. That's why we need to make sure this derivation of art never catches on. Our case may be over, but this is a fight that is only just beginning.
from the putting-the-(c)-back-in-'construction' dept
YOU WOULDN'T DOWNLOAD A HOUSE.
The defendants shall promptly take the following action in respect of the following external features of the third defendants’ house at lot 23 The Sands Estate Port Douglas:
(a) Feature: Dormer roofs
Action: Remove the dormer roofs.
(b) Feature: Arched and circular windows at the front of the house and such other exterior arched and circular windows as are ordinarily visible from public paths or streets.
Action: Remove and replace with rectangular or square windows and any external remnant space, appearance or outline of the arched and circular window shapes be filled and concealed by rendering.
(c) Feature: Stone edge trim corners at the front of the house and such other stone edge trim corners as are ordinarily visible from public paths or streets.
Action: Grind, cut away or remove the areas of stone edge trim to the extent necessary to render those areas flush with the walls and fill and conceal by render any remnant appearance or outline of the stone edge trim.
This is the opening of a recent decision (sent in by a unnamed Techdirt reader) by the Queensland (AUS) Supreme Court -- the end result of a copyright infringement lawsuit alleging that two builders (James Dormer and Michael Clark) worked in concert with a married couple to construct a copycat house. All of this is absolutely true, including the court's demand that dormer roofs (a fairly common architectural feature, actually) be removed and arched windows be converted to rectangles or squares to turn the house from an infringing edifice into something only faintly echoing the original source.
The events behind this outcome are almost comical. Plaintiff Stephen Coles purchased a house designed by George Skyring because he liked its unique features. Defendants John and Edith Breden also liked the house's unique features, but their bid for the house fell short.
So, the Bredens contacted Port Douglas Builders (who built the home Coles purchased) to construct them a replica version, utilizing the Skyring blueprints. Coles somehow heard about their plan to rob his house of its uniqueness and acquired the copyrights to the design by assignment from Skyring. He told the builders about his acquisition, hoping that this would alter their plans (to use unaltered plans). It had no effect. Construction continued. Litigation ensued.
The court doesn't look too kindly on the defendants' actions (as can readily be inferred from the terms of the judgment). Coles made it clear he didn't want to look out his window and basically see "his" house looking back at him. (The Bredens purchased a lot three houses away from Coles'.) He spoke to the construction company directly to express his concerns and -- after acquiring the copyright for the plans -- asked that the builders provide him with copies of their plans for his approval before construction. PDB's reps -- James Dormer and Michael Clark -- agreed to do so… but never followed through.
Mr Clark testified he received a text from Mr Coles that indicated Mr Coles was away and requested the drawings to be scanned and emailed to Mr Coles. Mr Clark testified they decided to not send such a copy. He testified, most unconvincingly, that their preference was to see Mr Coles face to face and that he anticipated Mr Coles would be in touch when he returned or once the plans were submitted for body corporate approval if he did not like them. I infer the unattractive reality is that knowing they had assured Mr Coles they would provide him with their proposed plans they decided to go back on their word, taking a calculated commercial decision to press on without further reference to Mr Coles.
When Mr. Coles returned from vacation, he saw a concrete slab with fittings in place that looked remarkably like the layout for his house. He again contacted PDB and again was ignored. By the time the lawsuit was filed, the Bredens' new home -- Coles House Mk II -- was nearly complete.
Because the court finds the two houses -- and their underlying plans -- to be substantially similar, James Coles wins the case. So, Coles will go back to the unique house he purchased and the Bredens will go back to their version of the same house, which is due to be remixed into un-uniqueness in the near future.
The discussion of the final judgment is also worth reading. The court finds it difficult to apply an injunction considering the replica house has already been constructed. Short of levelling it and forcing the Bredens to start over (which would inflict damages far in excess of what Coles has actually suffered), the court states that altering certain distinctive features is punishment enough and achieves Coles' original objective: to have a "unique" house. The court also refuses to make the Bredens and the construction company turn over every copy of the original plans, seeing as they might need to be referenced to ensure the ordered alterations can be done without disturbing underlying construction elements.
From the decision, it seems the Bredens themselves had little culpability. How much of Coles' concerns were passed on to the couple isn't detailed and they were not asked to testify. This puts them in somewhat of a bad spot if they were unaware. Obviously, the construction company did everything it could to nail down a second sale of the same house (more or less). Passing up the chance to earn another $1,000,000 is hard to do, even when the threat of litigation lingers in the air.
Australia isn't unique in affording copyright protection to architectural plans and design elements. But it is unusual to see a case being brought by a homeowner rather than a designer and even rarer still to see a copyright judgment result in physical alterations to the exterior features of a constructed residence.
As of late, Nintendo's relationship with YouTube and the YouTube community has been, shall we say, tumultuous. After rolling out a bad policy to share revenue with YouTubers on the basis that those personalities torpedo their reputations by promising only positive Nintendo coverage, claiming the monetization for a large number of "let's play" videos uploaded by independent YouTubers, and even going so far as to lay claim to the review of a Nintendo game created by well-known YouTuber "Angry Joe", Nintendo clearly seems to believe that YouTube is not so much an independent community as it is some kind of official public relations wing for the company. This is really dumb on many different levels, but chiefly it's dumb because it breeds ill-will amongst fans, of which Nintendo used to have many.
And the war drum beats on, apparently, as Nintendo has seen fit to issue massive takedowns of videos of fan-created Mario Bros. levels as the company releases its own Mario-level-builder, Super Mario Maker. What appears to be catching these YouTubers in Nintendo's crosshairs is if they used any emulators or hacks in order to make these levels.
Nintendo is targeting speedrunners and modders in a new round of YouTube copyright claims, issuing takedown requests to users who post footage from modified Super Mario World levels. The mass deletion coincides with the upcoming launch of Super Mario Maker, a Nintendo-licensed level creation toolkit for the Wii U console. Removed videos feature unauthorized Super Mario World levels created using freeware tools, rather than Nintendo’s official level design software.
Nintendo’s recent copyright claims impact speedrunners who have spent years crafting and documenting unsanctioned Super Mario World mods. According to a Kotaku report, YouTube user “PangaeaPanga” states that their channel was “wrecked” by copyright claims, resulting in the permanent removal of many popular videos.
In other words, modders had long beat Nintendo to the punch in creating software that allowed fans of Mario Bros. to create their own levels, upload them, and have folks like PangaeaPanga play them out and eventually master them. This was allowed to go on exactly up until Nintendo decided to jump into this arena, at which time the takedowns ensued. What you may not know is that there has been an active Mario Bros. modding community for these past few years, dedicated to building the most challenging levels for others to play and then post their runs on YouTube. In other words, these are huge Nintendo fans.
Super Mario World enthusiasts frequently create custom levels designed to challenge veteran players. Many of these levels require the use of little-known glitches and quirks within Super Mario World‘s engine, adding a degree of difficulty not present in the original game. Creative application of Super Mario World‘s hacking utilities has also produced unique autoplaying levels, including tributes that link in-game sound effects to backing music tracks.
Under the terms of YouTube’s copyright structure, users who have their videos claimed by copyright owners lose the ability to earn advertising revenue from their creations. Copyright holders have the option of claiming ad revenue from content-matched videos. As part of its most recent round of copyright claims, Nintendo instead opted to delete targeted videos entirely.
So we have Nintendo staring lovingly into the eyes of its biggest fans while pissing on their legs. And for what? Part of the reason Nintendo will likely make a killing with Super Mario Maker is that these dedicated fans had built up an interest in these modded levels and speedruns in the first place. Now, Nintendo intends on swooping in, killing off the videos of these fans, and yet cashing in on the market that the fans essentially created? How charming.
It's not that Nintendo can't do this, it's that it shouldn't. The company gains nothing except another round of fan discontent. Real smart, guys.
from the PAY-US-screams-the-recording-industry dept
As we've been covering over the past few years, there's been a big battle going on over the copyright status of "pre-1972 sound recordings." That may sound like a weird thing to be arguing over, but it's due to a weird bit of history in US copyright law. You see, for a very long time, Congress believed that copyright law could not cover sound recordings. However, various states stepped in and either through explicit state law or through common law, created copyright-like regulations for sound recordings. When copyright was finally updated in the 1976 Copyright Act, pre-1972 works were left out of the federal copyright system, even as federal copyright law basically wiped out all state copyright law for everything else. This has created some weird issues, including that some songs that should be in the public domain under federal copyright law are locked up in perpetuity. A simple and reasonable solution to this would be to just move pre-1972 sound recordings under federal copyright law and level the playing field. But, the RIAA has resisted this. That might seems strange, until you realize that the RIAA and its friends saw this weird quirk of copyright law as a wedge issue with which to try to squeeze more money out of everyone.
It started a couple years ago when basically everyone started suing Sirius XM and Pandora for playing pre-1972 music without getting a separate license to do so. Once again, the reasoning here is a bit complex, but prior to the 1976 Act, there really wasn't even any concept of a "public performance right" for sound recordings -- only for compositions. The idea of one for sound recordings only came into existence with the updated copyright law. But what the RIAA and friends are trying to do is to rewrite history and pretend that these various state laws also retroactively meant to include a public performance right, and that these newer services were violating it.
In a series of rulings in the last year, Sirius XM has lost a few of these lawsuits, while winning another one. This has many copyright scholars quite concerned that decades of settled law are being tossed out.
And that brings up a whole different issue. As you probably know, terrestrial radio does not need to pay at all for the use of sound recordings (it does pay songwriters/publishers for the use of the composition), because Congress has (correctly) noted that songs on the radio are a form of advertising, and thus the musicians benefit from it, and there's no reason to pay fees for the performance again. While the RIAA whines about this, the major labels own decades-long practices around payola make it clear that they, too, recognize that radio play is valuable for the musicians and worth paying for -- rather than worth being paid for.
Every few years, the RIAA pushes to have Congress change the law, and to start making terrestrial radio pay a "performance rights fee" for sound recordings as well. But that never seems to get anywhere. So, instead, the RIAA appears to be attacking this via the pre-1972 loophole, and claiming that even though Congress explicitly has said that radio doesn't need to pay, such a promise does not apply to pre-1972 songs. The new lawsuits, from ABS entertainment, aims to be a class action lawsuit for a bunch of pre-1972 music, and has targeted terrestrial broadcasters who also stream online, including CBS, iHeartRadio (previously known as Clear Channel) and Cumulus -- the big three radio broadcasters.
In the meantime, one of the first original cases concerning this issue, against Pandora, has now moved to the 9th Circuit appeals court and a whole bunch of copyright experts have weighed in hoping that the appeals court will reverse the lower court and remind everyone that these state laws never included a public performance right in the first place. Unfortunately, this is the 9th Circuit, which is somewhat famous for its wacky copyright rulings, so pretty much anything goes here. However, should it come out in favor of the RIAA's position, it could mean that pre-1972 music will start disappearing not just from streaming and satellite radio, but from traditional terrestrial radio as well.
Miami Heat part-owner Ranaan Katz will be parting with a bit of his fortune because he is a censorious blowhard who doesn't know when to quit.
Back in 2012, Katz got all sensitive about a blog that posted some court documents he didn't want published. To add imagined insult to imagined injury, the blog also posted a less-than-flattering photo of Katz. This one, to be exact:
Katz tried a "fresh" approach -- one that has been used by others with similar censorious motivations. He went the copyright infringement route. He purchased the copyright to the unflattering picture and filed an infringement lawsuit against the blogger (and Google, which hosted the blog). He also threatened to sue the blogger's lawyers, because Ranaan Katz has yet to discover a hole he couldn't make bigger.
And, for some ungodly reason, he nearly won. His barefaced effort to use copyright protection as a blunt "shut the fuck up" weapon was humored by a lower court, which issued a ridiculously broad injunction against the blogger. But upon later review, the district court decided the use of the photo was clearly fair use.
Plaintiff holds the copyright to an unflattering photograph of himself which Defendant published as part of highly critical blog articles she wrote about Plaintiff. Plaintiff purchased the photograph only after he realized Defendant’s use of it in her blog. Plaintiff’s purchase of the photograph was, from his perspective, to “stop this atrocity” of Defendant using the picture in her critical blog.
As explained by Magistrate Judge Chris M. McAliley in her Report and Recommendation recommending granting summary judgment in favor of Defendant:
Plaintiff is a businessman who testified that he considers the Photo “ugly” and “candid and embarrassing.” He does not claim to be a celebrity and does not claim Magriso’s (the original copyright holder’s) market as his own. Not surprisingly, Plaintiff has not tried to sell or license the Photo to anyone. Rather, Plaintiff testified that he obtained the Assignment of Copyright “[b]ecause I wanted to stop this atrocity.” (Plaintiff views the transfer of copyright as “a correction - correction of a mistake that happened.”). He has not used the Photo other than in this litigation, and has done so here to prevent its publication.
As Judge McAliley recognized in her Report and Recommendation, no reasonable fact finder could find for the Defendant. Plaintiff was privy to all the facts which led to summary judgment in Defendant’s favor from the outset of the litigation. He was fully aware when he filed the suit that he had no intent to profit from his copyright, nor was he a victim of any economic damages from Defendant’s use. The fact that the Court found three out of four factors weighed in favor of Defendant and the other was neutral clearly indicates that Plaintiff’s attempts to stymie Defendant’s speech are precisely what Section 107 is designed to protect against.
Even better, the court calls him out for using copyright as a weapon.
Instead of using the law for its intended purposes of fostering ideas and expression, Plaintiff obtained the photograph’s copyright solely for the purpose of suppressing Defendant’s free speech. Unsurprisingly, Plaintiff argues that protecting his rights under the Copyright Act was his sole motivation for filing this suit. [D.E. 187 at 13]. That assertion is rather dubious. Plaintiff has characterized this action as “just one battle” in a “malicious war.” [D.E. 187 at 1]. While Plaintiff might view it necessary to remove his unflattering picture to “stop this atrocity” [D.E. 148 at 23], he may not resort to abusive methods to do so.
Copyright as censorship. Only this time, someone's actually out a fair bit of cash for abusing the system. That, in and of itself, is an anomaly.
Lots of folks have really strong opinions -- both positive and negative -- about Burning Man, the big "festival/experiment/one-week city in the desert" or whatever you want to call it. But no matter what you think of Burning Man, it's always seemed odd that the organization behind it acts like a crazy intellectual property maximalist at times -- including using twisted interpretations of copyright and trademark law to stop people from doing anything Burning Man doesn't like with photos from the event. It required attendees to sign over the copyright on any photos taken, for instance.
But the latest move by Burning Man is really crazy. Just as this year's festival was ending last week, the sandwich chain Quizno's (long known for their amusing internet-ready commercials), released a pretty funny commercial mocking the commercialization of Burning Man in a way that pokes almost as much fun at Quizno's itself as it does at Burning Man. It does, certainly, mock the event for becoming pretty commercialized and "a place for rich people to check off their bucket list."
Burning Man takes issue with the clip and is considering legal action, not because of the mockery it makes of the more than 70,000-person annual event but because the video is theft of the event's intellectual property, according to Burning Man spokesman Jim Graham.
"We are pretty proactive about protecting our 10 principles, one of which is decommodification," Graham said. "We get a quite a number of requests each year from companies wanting to gift participants with their product or to capture imagery or video of their products at the event, and we turn them all down."
I have no idea what that last paragraph means. You can be proactive about protecting whatever principles you want, but it doesn't allow you to sue someone for making a parody. There was no intellectual property infringed in this ad. Get over yourself, Burning Man.
"We'll be coordinating with our legal team to see what action we can take," Graham said.
And hopefully your legal team tells you can't do jack shit about this. Nor should you. You should relax a bit and laugh at something funny and move on with your lives.
Some potentially good news this morning -- which may be undermined by the fine print. After many years of back and forth, the 9th Circuit appeals court has ruled that Universal Music may have violated the DMCA in not taking fair use into account before issuing a DMCA takedown request on a now famous YouTube video of Stephanie Lenz's infant dancing to less than 30 seconds of a Prince song playing in the background. Because of this, there can now be a trial over whether or not Universal actually had a good faith belief that the video was not fair use.
This case has been going on forever, and if you've watched the video, it's kind of amazing that a key case on fair use should be focused on that particular video, where you can barely even make out the music. The key question was whether or not Universal abused the DMCA in not first considering fair use before sending the takedown. This is fairly important, because, of course, DMCA takedowns suppress speech and if fair use is supposed to be the "pressure valve" that stops copyright from violating the First Amendment, it has to actually mean something. Section 512(f) of the DMCA says that the filer of a DMCA notice may be liable for damages for "misrepresentations," but historically that has been an almost entirely toothless part of the law (in part because of earlier rulings in the Lenz case). People hoped that would change with this ruling, and while the beginning of the ruling suggests 512(f) is getting teeth, the end yanks them all away.
The ruling in the 9th Circuit starts out great, but starts getting iffy pretty fast.
Her claim boils down to
a question of whether copyright holders have been abusing
the extrajudicial takedown procedures provided for in the
DMCA by declining to first evaluate whether the content
qualifies as fair use. We hold that the statute requires
copyright holders to consider fair use before sending a
takedown notification, and that failure to do so raises a triable
issue as to whether the copyright holder formed a subjective
good faith belief that the use was not authorized by law.
Sounds good, right? Anyone sending a DMCA notice needs to take fair use into account before sending a takedown. That may be trouble for all of those automated takedown filing systems out there, many of which we've written about. The court also reiterates that fair use is not "allowed infringement," but rather it's not infringement at all. This is also important (even though it says that directly in the law, many people pretend that it's just an "allowed" infringement). The court is not impressed by Universal Music's defense in the case, in which it argues that fair use is "not authorized by law" because, as Universal falsely claims, it is merely a "defense" to infringement. The court says that's wrong:
interpretation is incorrect as it conflates two different
concepts: an affirmative defense that is labeled as such due to
the procedural posture of the case, and an affirmative defense
that excuses impermissible conduct. Supreme Court
precedent squarely supports the conclusion that fair use does
not fall into the latter camp: “[A]nyone who . . . makes a fair
use of the work is not an infringer of the copyright with
respect to such use.”
So, that's all good. But... the details matter, and from that point on... they're weird. The court points to the earlier ruling, saying that the copyright holder "need only form a subjective good faith belief that a use is not authorized." Thus, as long as the issuer can come up with some sort of argument for why they didn't think it was fair use, they're probably safe.
As a result, Lenz’s request to impose a subjective
standard only with respect to factual beliefs and an objective
standard with respect to legal determinations is untenable.
And because of that, the court leaves a big out for just about any copyright holder. It says the court has no place in questioning how the copyright holder decided whether the use was authorized or not:
To be clear, if a copyright holder ignores or neglects our
unequivocal holding that it must consider fair use before
sending a takedown notification, it is liable for damages
under § 512(f). If, however, a copyright holder forms a
subjective good faith belief the allegedly infringing material
does not constitute fair use, we are in no position to dispute
the copyright holder’s belief even if we would have reached
the opposite conclusion.
The court says a copyright holder can't just "pay lip service" to the idea that it checked on fair use, but in the same paragraph admits that, well, it basically can. Even worse, it says that forming a "good faith belief" doesn't require actually investigating the details:
In order to comply with the strictures of
§ 512(c)(3)(A)(v), a copyright holder’s consideration of fair
use need not be searching or intensive. We follow Rossi’s
guidance that formation of a subjective good faith belief does
not require investigation of the allegedly infringing content.
So.... huh? (1) You need to take into account if it's fair use or not and you need to show a "good faith belief" that it's fair use, but... (2) you don't actually have to investigate anything, and the court cannot review your reasons for having a good faith belief. That's not a loophole. It's a blackhole that collapses 512(f) in on itself.
From there, it actually notes that automated takedowns... may be fine:
We note, without passing judgment, that the
implementation of computer algorithms appears to be a valid
and good faith middle ground for processing a plethora of
content while still meeting the DMCA’s requirements to
somehow consider fair use. Cf. Hotfile, 2013 WL 6336286,
at *47 (“The Court . . . is unaware of any decision to date that
actually addressed the need for human review, and the statute
does not specify how belief of infringement may be formed
or what knowledge may be chargeable to the notifying
entity.”). For example, consideration of fair use may be
sufficient if copyright holders utilize computer programs that
automatically identify for takedown notifications content
where: “(1) the video track matches the video track of a
copyrighted work submitted by a content owner; (2) the audio
track matches the audio track of that same copyrighted work;
and (3) nearly the entirety . . . is comprised of a single
So, uh, what? Automated takedowns may be fine because that's sort of a way to consider fair use because... no reason given. That is not at all helpful.
On a separate note, the court confirms that the trial cannot move forward by arguing that Universal had "willful blindness" about the likelihood of fair use in the case, because Lenz didn't really show that Universal had willful blindness. So that's another dead end.
Finally, the court rejected Universal Music's claim that Lenz had to show monetary damages in order to recover damages under 512(f). The court says 512(f) spans more than just monetary damages. Of course, that's almost entirely meaningless in a world in which everyone has an out through "subjective good faith" that doesn't even require investigating anything.
So this is a ruling that looks good up top, but gets bad as you read the details. There is a dissent, from Judge Milan Smith, pointing out some of the problems with the majority ruling, and the loophole that it creates. As the dissent notes, stating that something is infringing when you haven't done any fair use analysis is a misrepresentation, and 512(f) covers misrepresentations. So, in the end, a possibly important ruling is undermined with a massive loophole, which likely will lead to a continuing barrage of DMCA takedowns, including automated takedowns that suppress speech. That seems... wrong.