Copyhype

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.