Intimidating Creativity and Free Speech (the Battle between Fair Use and DMCA Takedowns)

This 30-second video is at the heart of a copyright dispute that spans nearly 10 years, and still has yet to be resolved fully. Of course, like any court case that goes all the way to the Supreme Court, this case isn’t about the specific video at all. But rather, the decision will have a broad impact on all copyright holders and ‘Fair Use’ users of copyrighted content, because it is about the interpretation of copyright law itself (specifically the Digital Millennium Copyright Act or DMCA, an important act governing copyrights on the Internet). But before we delve into the specific legal questions, let’s take a brief look at how DMCA takedown/putback procedure works. I didn’t fully understand how these worked before researching this case either.

DMCA Takedown/Putback Procedures

1. You upload a video to YouTube with a short clip of a copyrighted song.
2. 2 days later: The copyright owner notices that you used their song and sends a “takedown notice” to YouTube.
3. YouTube takes down the specified content (the law doesn’t specify a time limit on this, except that it must be done “expeditiously”, generally happens within 24 hours)
4. As soon you get notified of the takedown, since you believe your use of the song constitutes Fair Use, and so you send a “put back” counter-notice (it’s pretty simple to create a counter notice; https://lumendatabase.org can help you generate a counter notice)
5. YouTube puts back the content in 10–14 days unless the copyright holder files an action in court alleging that you infringed on their copyright in a way that doesn’t constitute Fair Use.

If you want the full scoop on this, the law describing this procedure (17 USC 512), including what needs to be in these notices is surprisingly short (just 8 pages).

A note about ‘Fair Use’: much of this blogpost uses the term ‘Fair Use’, but I can’t go into a detailed explanation of what constitutes Fair Use here, but Wikipedia should help if you need a definition. The common sense notion of Fair Use i.e. using a few short segments of music or movies while adding original commentary or for educational/non-commercial purposes is a decent enough working definition.

Legal Responsibilities of the Three Parties

Important to note the legal responsibilities of all the parties involved in this procedure. You and the copyright owner only have to have good faith beliefs in the opposing claims you are making. YouTube, on the other hand, does not need to have an opinion about the claim of copyright infringement at all. It simply has to comply with the procedure in order to protect itself from liability. This is the “safe harbor” provided to Internet companies by the DMCA.

Imagine if YouTube was liable for every copyrighted video that was uploaded, there would be no YouTube. Basically any kind of website hosting user-generated content on the Internet simply would not exist. Even though the DMCA is hated by lots of Internet users, this part of the law actually is quite essential, as this Wired article goes into depth:

If you’re wondering whom to thank for the Web 2.0 explosion in interactive websites, consider sending a bouquet to Congress.

Abusing the DMCA Takedown Process

But the DMCA has been abused by copyright holders and fraudsters plenty. This “safe harbor” creates a powerful incentive for any website, host or ISP to take down content without checking anything really. So, obviously, there are lots of fraudsters taking down content that they don’t like by claiming that they are copyright holders of the content even when they aren’t.

But there are other more insidious claims that have been made using the DMCA. Take the case of OPG v. Diebold, Inc. Here, some hacker broke into a private archive of Diebold (a voting machine manufacturer) emails and exposed various security flaws in their voting machines. Diebold choose to assert its copyright and asked various ISPs to take it down. All did except for one, OPG, which decided to sue Diebold claiming that this was fair use of their material. The general public had a right to know what was wrong with the voting machines they used. Thus, Diebold was using the DMCA to “chill” free speech. The judge ruled similarly:

…suggests strongly that Diebold sought to use the DMCA’s safe harbor provisions — which were designed to protect ISPs, not copyright holders — as a sword to suppress publication of embarrassing content rather than as a shield to protect its intellectual property.

Diebold was then ordered to pay $125,000.

Another example: The Church of Scientology has used DMCA notices as a means of censoring legal anti-Scientology videos and websites.

Lenz v. Universal

Back to this case. After Lenz sent a counter-notice (step 4 in the process we examined earlier), YouTube reinstated the video and the video has stayed up since then, because Universal never actually filed suit against Lenz. Instead, it was Lenz who sued Universal for misrepresentation. Lenz claimed that Universal was wrong in sending the initial takedown notice, in step 1. And under the DMCA (512(f)), there are penalties for misrepresenting, exactly to prevent this kind of abusive behavior. So, she ought to receive damages from Universal.

But this case is different, isn’t it? Universal isn’t trolling here, like Diebold or a fraudster might be. As an agent of Prince, they did indeed own the song. And while it might be Fair Use of their song, the initial takedown isn’t a legal determination, is it? They are certainly not asserting that it’s definitely not Fair Use. They are only asserting a good faith belief that at first glance, it looks like copyright infringement.

Therein lies the key question in this case.

Does the copyright holder when issuing a DMCA takedown have to consider that the potentially infringing content might actually be fair use?

The answer to this question by the courts was that yes, Fair Use absolutely needs to be considered. The statue regarding the contents of takedown notices says this (512(c)(3)(A)(v)):

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.

(via amended opinion of the court)

And the court held that, Fair Use is fully authorized by the law. Fair use is not merely an excused infringement of a copyright (an affirmative defense).

[A]nyone who . . . makes a fair use of the work is not an infringer of the copyright with respect to such use.

Wow! That’s a really strong pronouncement!

So far, so good. Next question.

To what extent must Fair Use be considered? Can you just give a passing consideration or does it have to be a more detailed investigation?

We can look at two possible extremes. First, the person sending out the notice at Universal could be someone with no understanding of Fair Use, but simply checks off an item on a list called “Fair Use”, and claims to have formed a good faith belief that the video wasn’t Fair Use on first consideration. This basically invalidates the liability for Universal in this scenario, and that seems unfair to the average user on the Internet. Counter-notices take time to write, you have to deal with your video being taken down for a couple of weeks, etc. And you shouldn’t have to do all that work if you took specific care in ensuring that you made Fair Use of the content.

The other possibility: the law could mandate that every such notice be approved by a copyright lawyer well-versed in Fair Use law. This also seems a little extreme since thousands of acts of actual copyright infringement take place on YouTube every hour. And it would be prohibitively expensive for copyright owners to send takedowns if they had to hire massive teams of high-rolling lawyers.

It’s important to strike a balance here. The Court obviously landed somewhere in the middle but in essence, it landed much closer to the earlier extreme than the latter. Let’s look closer.

First, the opinion states:

A copyright holder who pays lip service to the consideration of fair use by claiming it formed a good faith belief when there is evidence to the contrary is still subject to 512(f) liability.

But what evidence is sufficient to establish liability?

Universal admitted that they did not consider Fair Use in the procedure, but they also claimed that the consideration with which they looked at the video essentially checked for Fair Use, even if it wasn’t explicitly specified in their employee procedure.

To me, this seems like sufficient evidence to conclude that Fair Use was not considered by Universal. The original reviewer, if given the opportunity to write a short paragraph on why he believed it wasn’t Fair Use, would not be able. He didn’t understand Fair Use. He wasn’t trained or instructed in it. Universal is misrepresenting that when they sent the takedown notice to Lenz, they had “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.”

However, the majority opinion found otherwise. While they thought it was possible that Universal was liable, they believed the case should go to jury trial. They weren’t willing to take a stronger stance. The dissenting judge on the three panel, Judge Smith, goes that far. If Universal admits they didn’t explicitly consider Fair Use, they misrepresented and are liable for damages, he concluded.

Further details on this case here are rather subtle and technical. This Harvard Law Review article does a great job of explaining the details, if interested. The bottom line is that while this decision is monumental in holding, for the first time in federal court, that Fair Use is not infringement of copyright, not merely an excusable offense or an affirmative defense, but is fully authorized and encouraged by the law, the decision still falls well short of effectively curbing abuse and intimidation of the little guy by the big shots because the bar for proving misrepresentation by the copyright holder was set so high. From Harvard Law Review:

In order to stem such abuse more effectively, the court should have interpreted the DMCA’s “knowing” misrepresentation requirement to include representations recklessly made without sufficient procedures to form a good faith belief about fair use.

Disclaimer: This post does not constitute legal advice. I am not an attorney. Not even close. If you need legal advice, please contact an attorney directly.