For over six years, the Electronic Frontier Foundation (EFF) has been doggedly pursuing Universal Music for a DMCA takedown notice that removed a 29 second clip of a dancing baby from YouTube for approximately six weeks. The case is currently in front of the Ninth Circuit on appeal. The EFF has soldiered on for so long in order to create a precedent that copyright owners should be punished if they make one wrong step protecting their works in order to stop what some call “rampant abuse” of the Digital Millennium Copyright Act (DMCA) notice-and-takedown provisions. Yet if the EFF is successful, it will create a much bigger burden to creators who are already overburdened keeping their works from being exploited by illegitimate sites.

The story is probably familiar to most readers. In 2007, mother Stephanie Lenz filmed her toddler dancing in the kitchen while Prince’s “Let’s Go Crazy” played on a radio in the background. Lenz uploaded the half a minute clip to YouTube. Universal Music, the administrator of Prince’s musical composition copyrights, regularly monitored YouTube for infringement of Prince works. After a brief review of Lenz’s clip, Universal sent a takedown notice to YouTube, which YouTube complied with. The EFF soon came calling, and helped Lenz submit a counternotice to YouTube to restore the clip online. Lenz then filed suit claiming that Universal knowingly made a material misrepresentation that Lenz’s video was infringing in its takedown notice, a claim that is actionable under 17 USC § 512(f).

Years of discovery followed. This past January, the district court denied both parties’ summary judgment motions on Lenz’s. Few would argue that sending a takedown notice because a poor quality version of a portion of a song appears in the background of a home video is a smart thing to do. The question is whether it gives rise to legal liability.

The court said that the DMCA’s requirement of a good faith representation that a use of a work is not authorized by law demands, at a minimum, an initial assessment of whether the fair use doctrine applies. But it rejected the EFF’s argument that failure to consider fair use by itself is sufficient to establish liability under § 512(f). The court relied on the Ninth Circuit’s earlier decision in Rossi v. MPAA, which held that the “good faith belief” requirement in the DMCA encompasses a subjective standard (that is, whether it is reasonable from the perspective of the actual individual), not an objective standard (that is, whether it is reasonable from the perspective of a hypothetical “reasonable” observer), and “[a] copyright owner cannot be liable simply because an unknowing mistake is made, even if the copyright owner acted unreasonably in making the mistake.” 1391 F. 3d 1000 (2004). Thus, the statute requires actual knowledge that a material misrepresentation had been made.

The EFF also argued that Universal’s failure to thoroughly consider fair use amounted to willful blindness – a form of actual knowledge under the law. As the court notes, the Supreme Court recently defined willful blindness as a subjective belief that there is a high probability that a fact exists combined with deliberate actions to avoid learning of that fact. 2Global Tech. Appliances, Inc. v. SEB SA, 131 S.Ct. 2060, 2070 (2011). The court rejected the EFF’s contention that the Prince song playing in her video was “self-evident” fair use, saying, “A legal conclusion that fair use was ‘self-evident’ necessarily would rest upon an objective measure rather than the subjective standard required by Rossi.” Ultimately, however, the court did not see enough evidence from either side to make a ruling as a matter of law at this stage in the proceedings. Both sides appealed.

512(f) and the proper standard

The DMCA in part provides a safe harbor from liability for infringing material uploaded to online service providers by third parties for purposes of storage if (among other requirements) those service providers remove the material upon notice by the copyright owner. The statute spells out what information is required on such notices, information that includes “A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” 317 USC § 512(c)(3)(A)(v). The statute also creates a cause of action against “Any person who knowingly materially misrepresents under this section … that material or activity is infringing.”

Rossi is the leading case interpreting these provisions. Michael J. Rossi owned the internet site “internetmovies.com” that boasted “Join to download full length movies online now! new movies every month”; “Full Length Downloadable Movies”; and “NOW DOWNLOADABLE” – it also included graphics of a number of MPAA member studio films. Upon discovering the site, the MPAA sent a takedown notice to Rossi’s ISP, which complied. The MPAA hadn’t attempted actually downloading any films from the site before sending the takedown notice, and apparently the site, despite its claims, did not contain any infringing material. Rossi sued for, among other things, misrepresentation under § 512(f), arguing that the MPAA should have known the site did not infringe.

The Ninth Circuit disagreed with Rossi, and held that the DMCA encompassed a subjective standard for two reasons. First, courts have traditionally interpreted the phrase “good faith” in other statutes as indicating a subjective standard. Second, the structure of the DMCA suggests Congress intended a subjective standard.

Juxtaposing the “good faith” proviso of the DMCA with the “knowing misrepresentation” provision of that same statute reveals an apparent statutory structure that predicated the imposition of liability upon copyright owners only for knowing misrepresentations regarding allegedly infringing websites. Measuring compliance with a lesser “objective reasonableness” standard would be inconsistent with Congress’s apparent intent that the statute protect potential violators from subjectively improper actions by copyright owners.

Rossi is on solid grounds, both for legal reasons and for policy reasons. As one recent court said, “The high standard for a § 512(f) claim reflects the reality that copyright owners face an uphill battle to protect their copyrights on the internet. … Without the subjective standard, copyright owners … could face limitless lawsuits just by policing [their] copyrighted material on the internet.” 4Ouellette v. Viacom Int’l, Inc., No. CV 10-133-M-DWM-JCL (D. Montana, April 25, 2012). The EFF’s primary argument for seeking an objective standard is based on a California district court case that was released before Rossi.

The EFF’s argument that copyright owners must consider fair use before sending takedown notices fails for an even more fundamental reason. Fair use is an affirmative defense, meaning the onus is on a defendant to raise it. It would be unusual — not to mention near impossible — to require a plaintiff to anticipate any possible defenses a defendant might decide to raise and then consider them.

An example illustrates the problems that arise from this approach. To bolster its argument that “Based on the facts readily available to it, Universal should have known Ms. Lenz’s video was lawful,” the EFF stitches together case holdings from the Ninth Circuit, the Second Circuit, the Southern District Court of New York, and the Central District Court of California. It also cites to one case that came out five years after Universal sent its takedown notice.

The EFF has inadvertently revealed the fatal flaw in its argument here. Its legal analysis that should make fair use obvious to a reasonable person only works if the analysis takes place in some sort of conglomerate circuit court. But that’s not how things work in the real world. The fact is that fair use is not so much a legal determination as it is an adjudicated determination, one far outside the narrow scope of § 512(f).

DMCA abuse and perspective

That’s not to say there isn’t abuse of DMCA takedown notices, nor that § 512(f) shouldn’t work to prevent such abuse.

There are certainly examples of bad actors sending takedown notices for sites or content that is not infringing or likely not infringing for purposes of harassment, suppressing criticism, or stifling competition. This is obvious abuse, and this abuse reflects poorly on the vast majority of copyright owners who don’t abuse the DMCA process.

(There is also a lot of other stuff that isn’t abuse but categorized as such nevertheless. This may include takedowns that are a result of either overzealous or inexperienced/mistaken creators, or automated processes. Technical processes are constantly improved, and copyright owners have incentives to makes sure they are accurate since they generally don’t want to spend time and resources going after works that don’t harm their own property. As for overzealous enforcement, many copyright owners have found that the bad PR that results from too heavy a hand in sending takedown notices is not worth it.)

Abusive takedown notices receive a lot of attention, amplified by groups like the EFF to be sure, but how big of a problem are they within the larger picture?

A recent paper by Prof. Bruce Boyden provides one data point. In The Failure of the DMCA Notice and Takedown System, Boyden notes that from March to August 2013, the MPAA sent 25.2 million DMCA notices and received a total of eight counternotices claiming the targeted work did not infringe or was fair use or otherwise authorized. Not eight million — just eight.

Google’s own amicus brief in this case states it receives “hundreds of notices” that are not targeted at infringement. That’s a lot to be sure, but Google also receives nearly 24 million notices in total every month.

During last week’s public meeting on the USPTO Green Paper, the EFF’s Corynne McSherry made reference to a story that made waves earlier this year, involving several DMCA takedown notices intended for infringing copies of the television show Homeland targeting copies of Cory Doctorow’s book by the same name. The rhetoric certainly made it sound like a disaster: Doctorow’s book was “shut down” by “overzealous” takedowns, his novel “censored” by a veritable “dragnet.”

But take a closer look at the actual takedown notices that were at issue. Contained on them was not just URLs to copies of Homeland by Cory Doctorow but also URLs to copies of the TV show Homeland, as well as other television shows owned by the same copyright owner. Lots of URLs. One takedown notice has four links to Doctorow’s work out of around ten thousand total links. Another has sixty-two out of over 4,200 total links. A third has three out of around 9,600 total links. The “dragnet” captured a couple dozen copies of Doctorow’s book out of over 20,000 total URLs.

So we can ask two questions. Do we want to see noninfringing content become temporarily inaccessible at certain web sites? 5I’m certain that despite Doctorow’s novel being removed from sites like “http://tpb.5gg.biz”, it was still readily available at other sites, like Doctorow’s own home page. Of course not. But, at the same time, is a greater than 99.8% accuracy rate acceptable, especially when you’re dealing with tens of millions of notices a month?

Abusive takedowns are a problem, certainly, but they are a problem that exists at the far margins of the notice and takedown system. Seeking solutions could be a helpful discussion, but solutions shouldn’t come at the expense of the overwhelming majority of legitimate notices that are sent.

What shape would these solutions take?

Solutions, should they be needed, could come from the private sector. Because of the way courts have interpreted the DMCA, the burden falls almost exclusively on creators to identify infringing works. Service providers have little responsibility in cooperating with copyright owners to detect and deal with online copyright infringement, as Congress intended when it drafted the statute. 6Senate Report 105-190 at 20 (1998). That cooperation could include mitigating abusive notices since both service providers and copyright owners are motivated to prevent them. Unfortunately, many service providers have taken a minimal, hands off approach to the DMCA, doing little more than responding to takedown notices when they arrive. If service providers played a more active role in protecting creative works, perhaps the more egregious abusive takedowns could be prevented. This might be accomplished by incorporating best practices into voluntary initiatives or building more effective technical measures. Increasing transparency and streamlining internal appeals processes.

They might also come from government. The Copyright Office released a report on copyright small claims September 30, 2013. The report examined alternatives to litigation in federal courts that would be more accessible to individual creators with limited resources. The Office recommended a streamlined, voluntary administrative tribunal that would hear infringement claims with amounts at stake under a certain monetary threshold. The goal of such proceedings would be to afford effective remedies when federal litigation is resource prohibitive.

Interestingly, the Copyright Office proposes that the tribunal hear not only infringement claims, but also claims of misrepresentation in DMCA takedown notices or counter notifications under section 512(f). 7It’s unclear to me what remedies would be available under the draft legislation provided in the report. § 1403(c)(3) limits remedies in proceedings involving 512(f) claims, which I presume are not “infringement” claims, to “those available under this chapter.” But §1404(d)(1)(C), which sets remedies for claims other than copyright infringement, says damages “shall be awarded in accordance with applicable law.” The challenge with implementing the small claims court would be providing a process that is accessible to the general public without opening the door to a flood of frivolous or vexatious claims, but if that balance can be struck, the availability of hearing 512(f) claims may help address those rare cases of abuse that currently go unaddressed and relieve some tension in copyright debates.

Conclusion

The EFF spends much of its brief appealing to free speech values. 8Though it oversteps when it says that private actors can violate the First Amendment. Pg. 58. But courts should also be mindful of the free speech values that meaningful copyright protection promotes, and the chilling effect that the tidal wave of online infringement has on creators. As Susan Cleary of the Independent Film & Television Alliance said at a panel last week on creating a multistakeholder process to identify ways to improve the notice-and-takedown process, the game of whack-a-mole itself may be fun, but playing whack-a-mole with online infringement is not so much fun when it prevents your ability to finance your next film. Throwing up barriers against speech being made in the first place — especially speech from independent and niche voices — is a far graver threat to free speech then the temporary inaccessibility of already existing speech on a single website.

References   [ + ]

1. 391 F. 3d 1000 (2004).
2. Global Tech. Appliances, Inc. v. SEB SA, 131 S.Ct. 2060, 2070 (2011).
3. 17 USC § 512(c)(3)(A)(v).
4. Ouellette v. Viacom Int’l, Inc., No. CV 10-133-M-DWM-JCL (D. Montana, April 25, 2012).
5. I’m certain that despite Doctorow’s novel being removed from sites like “http://tpb.5gg.biz”, it was still readily available at other sites, like Doctorow’s own home page.
6. Senate Report 105-190 at 20 (1998).
7. It’s unclear to me what remedies would be available under the draft legislation provided in the report. § 1403(c)(3) limits remedies in proceedings involving 512(f) claims, which I presume are not “infringement” claims, to “those available under this chapter.” But §1404(d)(1)(C), which sets remedies for claims other than copyright infringement, says damages “shall be awarded in accordance with applicable law.”
8. Though it oversteps when it says that private actors can violate the First Amendment. Pg. 58.

23 Comments

  1. A problem with copyright enforcement is that you can simply not tell if something is infringing based on the content itself. Content can be copyrighted (and actually, in many countries ALL content is copyright unless the copyright has expired or was explicitly put into the public domain by the author). But that doesn’t say much about copyright infringement. There is no way to know, based on the content itself, if it is copyright infringement.

    Take this example: If I download some song from iTunes,and save it on various computers and devices I own, I’ve downloaded and copied copyrighted content. But I haven’t committed copyright infringement.

    Now lets say I sell one of my MP3 players to a friend, and it has my iTunes collection on it? That’s copyright infringement. But the content on the MP3 player hasn’t changed, it’s simply the transfer of ownership on the MP3 player itself that triggered copyright infringement. What this means is that copyright infringement is not dependent on the content itself, but rather transactions involving the content.

    There is all kinds of weird corner cases. What if I delete all my music on the MP3 player and sell it to a friend? Well, he can run a recovery software and still get back all the music that was on the drive, stuff is rarely actually deleted when you “delete” something, just references to the data are removed. Is he committing copyright infringement? Am I committing copyright infringement because sold an MP3 player that still had the content on it even though I made a good faith attempt to delete it?

    What I’m trying to get at, copyright was a hecka of a lot simpler when we talking about physical media. You buy a CD, it can only be used in one place, one CD player at a time. You can lend it, but now you can’t listen to it while it wasn’t accessible to you. You can sell it, but then you lose access to the music on it. There was no weird corner cases. You owned the medium, you could do lots of things involving the medium, the CD, the book, whatever. It seemed fair, you still had some kind of ownership over something when you bought a CD or a book. It felt like you owned something. You owned the medium, but not the music, you did not own the content. And the medium was hard linked to the music. The right to create the medium itself was what was reserved to the copyright holder.

    It was clear that manufacturing a CD (or licensing thereof) was the exclusive right of the copyright holder. Besides, it was not within the abilities of most consumers to manufacture CDs to begin with, so enforce this right wasn’t terribly difficult. The thought did not even enter most people’s minds.

    Copyright was easy to understand, how it worked was obvious and dare I say, at least at the consumer level, rather black and white. And it worked really well because of the dynamics of physical media.

    Computers just completely complicated everything regarding copyright.

    • I think you are seeing more complications than there really are, though I wouldn’t say there are none.

      Let’s start with your first example. When you purchase something from iTunes, you are actually buying a license to do certain things with the song in question – download it onto your iPod, for a start. What you are licensed to do with it will depend on the wording of the license, although it’s likely that it will be something along the lines of “nothing that infringes on the copyright holder’s exclusive distribution right”. So it will probably okay for you to make several copies for personal use (one on the computer, another on the iPod, perhaps a backup), but not to make copies for others.

      Now, if you choose to sell a device you made copies onto, you should probably erase those copies. Otherwise, you are likely to be liable for infringement. It’s a similar situation you might have with buying a CD, making a copy and then selling it. Selling the CD is fine, keeping the music is not. Since you are selling a device, ostensibly with no content attached (if you were to sell the iPod with music on it, it’s a clear infringement of the distribution right, because you did not get a license to sell copies), it should not contain any music.

      If you did delete it and the buyer then recovers the data, it is he that has committed infringement – knowingly and willingly (you don’t typically undelete data by accident). He did not purchase those tracks from you (nor were you licensed to sell them), so he has no business having them. If it is a friend you sold it to, the situation is not unlike him coming to your house with a pendrive and downloading stuff from your computer.

      It’s not hard at all. The problem, as I see it, that pretty much until Napster the man on the street did not think about copyright at all. Sure, there was plenty of petty infringement going down: home taping, photocopying books, copying games on floppies (remember those?) and the like, but it was small-time stuff that didn’t really make much of an impact in the overall market. Copyright happened to other people – mostly lawyers.

      The problem now is that through some bad policymaking, businesses have sprung up to take this small-time infringement up to a global level. It has little to do with computers or the internet and a lot to do with how the law is constructed and applied. Consider that if Fanning had gone to jail for criminal copyright infringement instead of cashing in on Napster, we probably wouldn’t be having this conversation.

    • Take this example: If I download some song from iTunes,and save it on various computers and devices I own, I’ve downloaded and copied copyrighted content. But I haven’t committed copyright infringement. Now lets say I sell one of my MP3 players to a friend, and it has my iTunes collection on it? That’s copyright infringement. But the content on the MP3 player hasn’t changed,

      Incorrect. You are bartering a single physical object, the mp3 player, to a single person, not the contents to a “[p]ublic or … where a substantial number of persons outside a normal circle of family and its social acquaintances is gathered.” See 2 MELVILLE B. NIMMER, Nimmer on Copyright § 8.14[C], at 8-169 (1993). The DMCA infringement is on the copy of the material objects. In fact, in your analysis, you legally purchased from iTunes, and since digital files have no value you cannot resell them as a secondary uploaded/downloaded files.

      But in this case, Lenz’ motive was to UPLOAD a copy of Universal’s material object to YouTube which is a public display. The upload is a copy because the original file is still on Lenz’ computer, there are now two (2) copies (his YouTube account and his computer), not one fixed material object. It is Google/YouTube that is committing the willful blindness here knowingly enabling Lenz to commit theft for a public display. Assuming YouTube is a service provider (even if I claim (and can prove) that they are not), it is YouTube that enables the file to become a copy on their public display without any enforcement BEFORE it appears, appends ads around the public displayed copy, and further allows the file to be downloaded as a copy of the copy (see Mozilla’s Firefox Add-On Video DownloadHelper). YouTube is the enabler and does not monitor how much money they steal before any DMCA Takedown Notice is received (see Aimster Copyright Litigation, 334 F.3d 643 (7th Cir. 2003), Capitol Records, LLC v. ReDigi, Inc., No. 12 CIV. 95 RJS, 2013 WL 1286134 at 5 (S.D.N.Y. Mar. 30, 2013), and see Eldred v. Ashcroft (01-618) 537 U.S. 186 (2003) 239 F.3d 372)

  2. Section 512(c)3(a)v states (as you quote in part) “To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following: . . . A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. ”

    Section 107 states “the fair use of a copyrighted work . . . is not an infringement of copyright.”

    Fair use is thus part of “the law” requiring “good faith” consideration in 512. Further, the statute does NOT state that fair use a defense to an allegation of infringement, rather that is not an infringement. So the statute works against your argument. Your suggested approach makes 512(f) meaningless.

    • Fair use is thus part of “the law” requiring “good faith” consideration in 512.

      But even the district court in Lenz said there’s no affirmative duty to consider fair use: “In light of Rossi, it appears that Universal’s mere failure to consider fair use would be insufficient to give rise to liability under § 512(f).” Lenz v. Universal Music Corp., 2013 WL 271673 at *7 (N.D. Cal. Jan. 24, 2013). Other courts have agreed. See, e.g., Tuteur v. Crosley-Corcoran, 2013 WL 4832601 at *7 (D. Mass. Sept. 10, 2013). I don’t believe any court has ever held that the copyright holder must consider fair use before issuing a takedown notice. There was that earlier ruling in the Lenz case, but that was retreated upon in the later opinion I cited above.

      Further, the statute does NOT state that fair use a defense to an allegation of infringement, rather that is not an infringement.

      It’s a defense that negates the liability that the copyist would otherwise have but for the privilege. Of course it’s a defense. Yes, once successful, the act that was prima facie infringing is therefore noninfringing because the privilege acts as a complete defense, but that doesn’t mean it’s not a defense. It erases the prima facie infringement precisely because it is a defense. That’s what defenses do.

      That it operates as a defense is undeniable. See, e.g., Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 561 (1985) (“The drafters resisted pressures from special interest groups to create presumptive categories of fair use, but structured the provision as an affirmative defense requiring a case-by-case analysis.”); H.R. Rep. 102-836, *3 (“Fair use is an affirmative defense, and as such is relevant only after a copyright owner has made out a prima facie case of infringement.”); Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994) (“Since fair use is an affirmative defense, its proponent would have difficulty carrying the burden of demonstrating fair use without favorable evidence about relevant markets.”).

      If you don’t think it’s a defense, then what do you think it is?

      • “If you don’t think it’s a defense, then what do you think it is?”

        Read the statute. It explicitly states that fair use in not an infringement. Doesn’t get much simpler than that.

        When I buy a book and give it my brother as a Christmas present, do I need to defend myself from a charge of infringement relying on Section 109? Or is just clear that this isn’t infringement? Similarly for showing a video in class or any of the other statute defined exemptions. Are these merely defenses? If good faith consideration of the law means ignoring the law, you’ve pretty much written a superfluous clause into the statute.

        • Read the statute. It explicitly states that fair use in not an infringement. Doesn’t get much simpler than that.

          I contradict your argument. See Roy Export Co. Establishment of Vaduz, Liechtenstein, Black, Inc. v. Columbia Broadcasting Sys., Inc., 503 F.Supp. 1137, 1145 (S.D.N.Y.1980) (fifty-five seconds taken from a one-hour and twenty-nine-minute film deemed qualitatively substantial for copyright infringement), aff’d, 672 F.2d 1095 (2d Cir.), cert. denied, 459 U.S. 826, 103 S.Ct. 60, 74 L.Ed.2d 63 (1982) citing Playboy Entertainment, Inc. v. Frena, 839 F. Supp. 1552 (M.D. Fla. 1993)

          In other words, Lenz knew Prince’s music was a copyrighted work; however, his motive was to put a portion of it as a copy of the material object on a public display where Google/YouTube enabled the user, Lenz, to do so, append ads around the copy, and then grant downloading of that file for any Google/YouTube user on the planet. It is the Electronic Frontier Foundation that is making the “spew” in this case to save Google/YouTube from the real willful blindness—to knowingly enable all to create copies of material objects to a public display without any authority. (See Global-Tech Appliances, Inc. v. SEB S.A. 563 U.S. 131 at 10 (2011))

        • I don’t think you understand how “affirmative defense” works.
          If you pull out a gun, aim it at someone and shoot them dead, you are guilty of homicide – unless it so happens that they were shooting at you first, or likely to do so any second now. In the latter case, you’ll be acquitted because you were acting in self-defense. Similarly, you will likely be innocent of homicide, if you intentionally shoot someone who was threatening to shoot someone else. The standard for what qualifies as appropriate defense (this is actually a Polish term, translated, perhaps one of the lawyers in the room can shed some light on similar mechanisms in the U.S.) differs between jurisdictions, but to the best of my knowledge tends to be a statutory construct.
          The point worth remembering is that it is you who has to show you were acting in self-defense (or defense of another). It’s not up to the police or prosecution to completely rule out the possibility before bringing you to trial. If there is no reasonable doubt that it was you who pulled the trigger and you keep mum about the fact you were acting in self-defense, you will be convicted.
          So it is with fair use: all unauthorised uses are presumptively unfair, because the law vests exclusive rights in the copyright holder – that’s what makes them exclusive. Fair use gives you the privilege of immunity from infringement claims – if, and only if, you can demonstrate that your use was fair. You must assert fair use when legal action is brought against you – nobody is under any obligation to consider whether your use was fair before bringing action. It is written into the statute, but only as a means of getting off the hook in exceptional circumstances (much like self-defense). There is no presumption of fair use that must be rebutted, before a copyright holder brings legal action.

        • Read the statute. It explicitly states that fair use in not an infringement. Doesn’t get much simpler than that.

          I think the part you’re missing is that it’s not an infringement because of the affirmative defense. Without being able to make out a successful fair use defense, it would be an infringement. Operationally, first the plaintiff has the burden to show that what the defendant did amounts to prima facie infringement (prima facie infringement = ownership of valid copyright + copying of original, constituent parts). Then, the burden shifts to the defendant to show that, despite what he did constituting prima facie infringement, the affirmative defense of fair use privileges his copying and negates the liability he would otherwise have.

          All affirmative defenses work this way. Self-defense is an affirmative defense to murder. The prosecutor first proves that what someone did constitutes murder, and then the defendant shows that, despite being a prima facie (“at first blush”) murderer, his killing was privileged under the affirmative defense of self-defense. The killing of another human being, which would otherwise be murder, is not murder because the affirmative defense applies to him. The affirmative defense erases what would otherwise be a wrong, and if the defense is not successful, he’s guilty of murder.

          When I buy a book and give it my brother as a Christmas present, do I need to defend myself from a charge of infringement relying on Section 109? Or is just clear that this isn’t infringement?

          If you were sued for infringement of the distribution right for giving your brother a book that you bought, then, yes, you would absolutely defend yourself by arguing the affirmative defense of first sale under Section 109. The copyright holder would make out his prima facie case of infringement, i.e., that you distributed the book without authorization, and then you would present your affirmative defense—which would win the day assuming your original purchase was legit and it exhausted the copyright holder’s distribution right.

          Similarly for showing a video in class or any of the other statute defined exemptions. Are these merely defenses?

          Yes, if you were sued for violating the public performance right, you would present your affirmative defense of fair use after the plaintiff first proved that your actions were prima facie infringing.

          If good faith consideration of the law means ignoring the law, you’ve pretty much written a superfluous clause into the statute.

          It’s not superfluous. If someone issues a takedown notice in subjective bad faith, then that is a misrepresentation under Section 512(f). For example, if I know for a fact that you have a license that permits you to post something on YouTube, and I send a takedown notice anyway, that’s a misrepresentation. I think one problem with your view is that it’s next to impossible for someone to know for a fact ex ante that some use is fair. If a rightholder can’t know for sure whether some use is fair, then it’s impossible to form the subjective bad faith belief about it that would make it a misrepresentation to claim that it’s not fair use.

          • ” . . . it’s next to impossible for someone to know for a fact ex ante that some use is fair. ”

            Okay, this is where we disagree. Your statement here is just flat out false and wholly unreasonable. If it were so, why wouldn’t every scholar who uses short quotations from another work be sued for infringement and forced to defend herself? In your and the previous commenter’s analogy to self-defense, why are some instances of killings due to self-defense not even prosecuted?

            The point is that fair use is as much a part of the statute as the grant of exclusive rights. Your insistence on considering it a defense, pragmatic as that may be, suggests otherwise. Your reading grants precedence to one part of the statute over another.

          • Okay, this is where we disagree. Your statement here is just flat out false and wholly unreasonable. If it were so, why wouldn’t every scholar who uses short quotations from another work be sued for infringement and forced to defend herself? In your and the previous commenter’s analogy to self-defense, why are some instances of killings due to self-defense not even prosecuted?

            Well, there’s tons of blatant infringement that occurs everyday that will never be sued over, but that doesn’t mean it’s not happening. I don’t think the number of lawsuits is a good metric. People could just as well not be suing over those uses because they don’t know that they’re happening or because they don’t have the resources to press a federal infringement action. I get what you’re saying though, which is that some uses seem almost certainly noninfringing—at least to someone sophisticated enough to make that determination. But even if you and I would think that some use is almost certainly fair, that doesn’t mean that another person who disagrees with us has the requisite subjective bad faith. Nor does that really matter if, as the Lenz court and other courts have found, there is no affirmative duty to consider fair use before issuing a takedown notice.

            The point is that fair use is as much a part of the statute as the grant of exclusive rights. Your insistence on considering it a defense, pragmatic as that may be, suggests otherwise. Your reading grants precedence to one part of the statute over another.

            Of course, 107 is just as much a part of the Copyright Act as 106. The fact that 107 is a defense just means it operates as a defense. You seem to think being labeled a defense makes it somehow less worthy. That’s your view, not mine. Since the defense trumps the right, it seems to me the defense is “better,” at least in certain contexts. I don’t think I’m granting precedence to either part. I’m reading them together, as they should be read—especially since 107 explicitly references 106.

  3. Your insistence on saying fair use is only a defense does give precedence to 106 as you claim 107 can only be applied after a charge of prima facie infringement. However, 512 requires a good faith representation of the law which suggest to me that the law ought to be considered and not just the portions you find friendly.

    • Your insistence on saying fair use is only a defense does give precedence to 106 as you claim 107 can only be applied after a charge of prima facie infringement. However, 512 requires a good faith representation of the law which suggest to me that the law ought to be considered and not just the portions you find friendly.

      I think where we disagree is over whether one can have a good faith belief that the use in question is not authorized by law without considering first all of the user’s possible defenses, such as fair use or first sale. You think that the sender of a takedown notice has the affirmative duty to consider all of the user’s possible defenses, whereas I think that one can have the good faith belief that something is not authorized by law even if he hasn’t considered any of the possible defenses. I think the fact that there are so many possible defenses, many of which turn on facts the rightholder couldn’t possibly know, cuts against your reading of the statute. It’s a misrepresentation if the sender of a takedown notice knows for a fact that the use is authorized by law. That’s not the same thing as placing the sender under some duty to draw multiple, complicated legal conclusions about users he knows nothing about, as you would have it.

      • The conclusion to draw from your reading is that legacy content industries can ignore the law while start-ups attempting to create new services and creative tools building on prior works are left to just accept that. Now that’s promoting progress and the useful arts!

    • I should clarify that I think a copyright holder can send a takedown notice with the good faith belief that the use in question is not authorized by law because what he’s certifying there is merely that he thinks he has a prima facie claim of infringement and that he thinks the user has at best some colorable defense that might win the day. It’s the same with filing copyright actions. The Beastie Boys can sue GoldieBlox for copyright infringement, while having the good faith belief that GoldieBlox’s use is not authorized by law, even if the Beastie Boys at the same time believe that GoldieBlox has a colorable fair use defense. The rightholder is under no duty to draw such complicated legal conclusions from the limited facts he has at hand. He instead is merely claiming that he thinks there’s prima facie infringement, and, as far as he knows, the user has no complete defense that is certain to win the day.

    • However, 512 requires a good faith representation of the law

      Define “good faith” in tort? First assuming that “bad faith” doesn’t exist, right? I believe Dan’s argument is in “bad faith”, to maintain the motive that a company, Google/YouTube enabling the illegality of a display right (see 17 USC § 101) for innocent freedom of anonymous users in scienter. (see 17 USC § 106, 17 USC § 501). 17 USC § 107, in your “bad faith” is a cui bono abuse of “[t]he effect of the use upon the potential market for or value of the work”. Id. It is Google/YouTube, in this case, that is willfully blind on a “wholesale basis” for all anonymous users to freely and infinity ignore the statutes (See Capitol Records, LLC v. Vimeo, LLC, F. Supp. 2d , 2013 WL 5272932 at 36 (S.D.N.Y. Sept. 18, 2013))

  4. This article’s attempt to downplay the abuse of DMCA take down notices would be laughable if wasn’t so sickening.
    “Boyden notes that from March to August 2013, the MPAA sent 25.2 million DMCA notices and received a total of eight counternotices claiming the targeted work did not infringe or was fair use or otherwise authorized. Not eight million — just eight.”
    This section is blatantly misleading, the vast majority of DMCA notices are issued to individuals and small websites that have neither the financial nor legal means to fight a DMCA notice, no matter how wrongful that notice is. The fact that there were only eight counternotices does not mean there were only eight wrongful notices issued as the article attempts to imply, but rather it means that were only eight people willing to fight the massive uphill battle that is suing a major corporation.

    • Guy,

      State your source that DMCA Takedown Notices are sent to individuals? How can an individual receive a DMCA Takedown Notice? Only a “service provider” (see 15 USC § 512(k)(1)) can receive the DMCA Takedown Notice. Again, placing the cui bono on people as if it were lawful by the enabling of the service provider has no protection.

    • […] the vast majority of DMCA notices are issued to individuals and small websites

      Got any data to support that claim? Because it seems to me that the vast majority of DMCA notices are sent to Google, who have financial and legal means up the wazoo.

      That said, nobody is forcing those individuals to put up websites and when they do, they elect to become publishers – with all the responsibilities associated, including liability for wrongdoing (which may mean getting a DMCA notice every now and again). To say nothing of the fact that “fighting” a DMCA notice is hardly a huge battle – initially, at least. In Lenz, all it took was a counternotice. Now Lenz is suing Universal – not the other way around. Nobody is forcing her to do it either.

      You seem to be under the impression that rights holders are just itching to sue everyone, regardless of their chances in court. Not so. A lawsuit is always a major drain on resources, to say nothing of possible PR damage. The chances of you being sued after sending a legitimate counternotice are slim (see Lenz, again).

  5. Excuse my naivety, but in the ‘dancing baby’ case, how does the use of the music even get through the starting gate for a ‘fair use’ defense’?

    The relevant statutory provision states that ‘the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.’ It goes on to set out the notorious ‘four factors’ to be taken into account. But these do not override the preliminary requirement that the use be ‘for purposes such as criticism, comment, news reporting, teaching… scholarship, or research’. The courts have held, dubiously, that works constituting parody or pastiche of a copyrighted work can fall within such purposes, as they are analogous to comment or criticism, but I do not see how by any stretch of the imagination the use of music to accompany a dance performance falls within such purposes. The fact that a baby does the dancing cannot be relevant.

    The only basis I can see for a defense is simply ‘de minimis non curat lex’, but that is not the same as fair use.

    I dare say this point has been covered in the various previous hearings, but I’m genuinely curious to know how it has been argued.

    • I dare say this point has been covered in the various previous hearings, but I’m genuinely curious to know how it has been argued.

      I could be wrong, but I think that Lenz only had the one misrepresentation claim and Universal had no counterclaims. So the merit of the fair use defense they’re fighting over is strangely irrelevant. They’re arguing over whether Universal had to consider fair use before sending the takedown notice, not over whether Lenz’s use is actually fair.

    • Re: parody and pastiche…

      To be fair, both require recongiseable references to the work – otherwise they couldn’t be parodies or pastiches. Moreover, the whole point of parody is to examine a work in a new (typically humorous) light, which certainly ticks the box of commentary and perhaps criticism. That said, many things that are called parodies aren’t. A quick example, off the top of my head: we’d be hard pressed to demonstrate the parodic nature of Weird Al’s Amish Paradise, given that the subject matter of the lyrics is totally different to the original song (and poking fun at something completely different). This is actually a standard feature of his work. It’s also likely that this is a key reason in his decision to always license the work he chooses to cover. In that sense, Goldiblox have a stronger fair use claim than Weird Al, though that fails for different reasons.

      Distilled, fair use provisions are there so people can freely talk about works – it is, for example, hard to argue with what someone has written if you aren’t at liberty to say what it was, exactly. Unfortunately, over the years the concept has been expanded to encompass all sorts of other things that have nothing to do with being able to discuss works (for my purposes here, poking fun at a work my making a caricature version – parody – of it counts as discussion). Many of those things could well be qualified as de minimis (home taping, making backups, time-shifting in the Betamax case), others – not so much.

      From a results-based perspective, it might seem not to matter that much, but I believe that there are important differences in what I would call the “psychology of law”. Classifying something as de minimis basically means that it’s not important enough to get worked up about. Fair use – on the other hand – makes things seem a lot more important than they are, which is how you get people going all “God-given right” on your hindquarters, in this very comment thread, no less. I believe that fair use is actually pretty important, which is why the appelation should not be bandied about willy-nilly.

      I feel the same way about how the word “censorship” is used these days (mostly by the same people) – I just happened to live in two countries that had proper censorship (of completely different things) during my formative years.

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