Stephanie Lenz is a tough woman. Not content with merely getting Universal to retract its unnecessary takedown notice over a YouTube video she uploaded, she went ahead and sued the, for it too.
Last month saw Universal Music, which had issued the DMCA notice over 30 seconds of a Prince song playing in the background of a baby dancing, claim that “fair use is infringing”.
Now, as discussed here by Sherwin Siy of Public Knowledge, the judge in the case has refused to dismiss her lawsuit, essentially backing her claims that the clip was fair use, and should have been left alone.
Of Dancing Babies and Overzealous Takedowns: When “fair use is hard!” doesn’t cut it
Yesterday, a federal district court in San Jose refused to dismiss a suit brought
against Universal Music for improperly demanding that YouTube remove a
home video from its site.
In this case, Stephanie
Lenz was sent a takedown notice for posting a home
video
on YouTube. Lenz had made a video of her toddler stumbling through her
kitchen, then hearing and bobbing to Prince’s
“Let’s Go Crazy,” which
was playing tinnily in the background on a countertop stereo.
Despite
the obvious fair use of the work, Universal sent a takedown notice to
YouTube anyway. YouTube took the video down and notified Lenz that she
had been accused of infringing copyright. After Lenz consulted a lawyer
and issued a counter-notice, the video was put up again some six weeks
later. After this, Lenz sued Universal.
There are provisions of the DMCA
that let people like Lenz sue the sender of a takedown notice if the
sender “knowingly materially misrepresents…that
the material is
infringing.”
Rejected In Court
In return, Universal moved to dismiss the suit, saying
that, even if the clip was fair use, notice-senders aren’t
under any
obligation to check and see if a use might be fair before sending a
notice. All they have to do, says Universal, is see that their work was
used somehow. Fortunately, the court rejected this argument.
But I want to take this opportunity to discuss one of the
points
that Universal raised in support of its position. The last time I
mentioned the Lenz case on this blog
was in reference to Universal’s assertion that fair uses were
infringements—just excused ones.
This time, I want to talk about
Universal’s assertion—one that is often
echoed—that looking for fair
use is asking too much of notice senders, because fair use is an
inherently fuzzy concept.
It’s a mantra in copyright circles: fair use is a
fact-specific,
case-by-case inquiry. Whether or not a particular use of a copyrighted
work is fair depends a lot upon the specific circumstances of the case;
broad categories aren’t generally going to cut it.
Educational Uses
For instance, even
though “educational uses” are listed as a
particular example of a fair
use, not every educational use (for instance, copy shops making course
packs) has been ruled fair.
That’s as it should be. However, there’s a
tendency to go too far.
Lawrence Lessig has famously said that “fair use is the right
to hire a
lawyer.”
But too often, that’s read as a statement of the
law, and not
for the wry, pessimistic joke that it is.
“Fact-specific” and
“case-by-case” don’t mean that we must
assume a naive ignorance of the
doctrine until a court stamps a verdict on a particular use.
Black, White Or Gray
While
there’s a large gray area in fair use, there are areas off in
the ends
of that scale that we can unequivocally designate as black or white.
Lenz is a good example. The obvious defense to
Universal’s
allegation of infringement is fair use.
Although part of the song was
reproduced and performed as part of a new (derivative) work, it took a
tiny, nearly unrecognizable portion of the song, was a small part of
the larger whole of the clip, was used in a completely noncommercial
setting, and would in no way whatsoever harm the market for
Prince’s
work.
It would take someone with a complete disregard of the
realities
of copyright law to consider this infringing.
Yet that’s exactly what someone at Universal did.
Someone identified
this clip and proceeded to engage in a legal process that would result
in Lenz’s work being removed from its home on the net. What
were they
thinking?
Automated System?
The likely answer was that they weren’t thinking at
all. The most
likely scenario I can think of was that Universal was using some
automated system that searched YouTube and other hosting sites for
content that resembled their own.
Given that Lenz had named the video
clip “Let’s Go Crazy #1,” a text-based
search might have found it. An
audio recognition algorithm might have been able to pick the song from
its fuzzy background. And what then, after the posted video had been
flagged?
Did human eyes review it before the takedown notice, with its
attendant legal threats and ramifications, went out?
The simple fact that this notice was sent shows a failure on
Universal’s part—either a failure to review the
clip, or to have it
reviewed sensibly. Instead, the notice was sent despite all indications
that the clip was not only harmless, but legal. Why?
Cheaper and Easier
Likely because, in someone’s calculation, it was
considered cheaper
and easier to send out these takedown notices willy-nilly (after all,
what’s the cost of one more email) than to risk there
possibly being an
infringing video out there, which might result in a loss of
revenue—perhaps a dollar’s worth from iTunes,
multiplied by the percent
chance that it was actually an infringement.
It would cost more to have
a knowledgeable person review the clips that they were accusing of
infringement, but if sending out a notice that shouldn’t have
gone out
doesn’t cost anything, why go to the expense of another
review?
Universal’s arguments against looking at fair use
admit as much—they
argued that taking fair use into account when sending notices would be
too expensive for their purposes.
Fuzzy Nature Of Fair Use
Part of that expense stems from the
fuzzy nature of fair use, since dealing with complex issues of context,
purpose of use, and substantiality is something that requires a human
brain—one with at least a bit of training, too.
Dealing with fair use
means that a copyright holder can’t automate the
notice-and-takedown
process without having a human in the loop—even if that means
the
process becomes more expensive to the copyright holder.
That’s because the cost-benefit calculus of the
copyright holder
needs to be balanced against the costs and benefits imposed upon the
rest of society—including people like Becky Lenz. What are
the costs to
society of having legal content removed?
They’re harder to calculate
economically, and furthermore, they implicate fundamental rights that,
according to our founding documents, ought not, cannot, be sold.
The Balance Of Law
So the law creates a way for that balance to be taken into
account—through provisions like the one Lenz used to sue
Universal.
Such safeguards help to right the balance of costs and
benefits—if
sending a false notice costs Universal very little, but—costs
Lenz (in
time, legal fees, and worry) a lot, there should be a means by which
she can recoup those costs, if Universal was too cheap to prevent them
from arising in the first place with a careless notice and takedown
procedure.
But the excuse that fair use is hard goes beyond the narrower
confines of DMCA notice-and-takedown. A number of voices in the content
industry continue to call for filters on networks that will look for
and identify infringing content.
Copyrighted Vs Infringing
Of course, what that really means is
that the filters will look for and identify copyrighted
content—but whether or not that content is infringing depends
on a lot
of other factors, including fair use.
In such cases, the consequences
could be far worse than an improper takedown notice. Without legal
structures like the 512(c) procedures and 512(f) safeguards, the
content could just disappear en route on the network, or infringement
suits might result.
But it’s not just automated filters—too
often, you hear the argument that a use simply isn’t fair until a court
says so.
That’s far from true. While a court decision provides a
definitive
answer—at least as the law is interpreted in that
court’s
jurisdiction—a fair use is fair from the time of its making,
through
the lawsuit and trial, and after the opinion is published and
reported.
By the same token, an infringing use was infringing from its
doing to
after the decision. What changes isn’t the legal status of
what
happened—just how much people’s opinions
differed.
The facts of what
happened happened—they remain the same. And until the law
changes, the
use was legal or not—not in some Schrodinger’s
cat-like limbo, and
certainly not assumed to be infringing unless proved otherwise.
Duelling Statements
Obviously, a both sides on an infringement lawsuit are going
to
present their best arguments to a court, and to the court of public
opinion. That means that you’re going to have dueling
statements in
briefs and in the press about how something is clearly an infringement
or clearly fair use. And the interests of fairness require the judge to
hear both sides, and the press to report them both as well.
But that doesn’t absolve the parties
involved—or anyone who has the
necessary facts of the case—from making a fair and frank
analysis of
even that notoriously gray area of fair use.
Conclusions
The fact that there are
two sides to every issue doesn’t mean that one side
isn’t wrong. And
sometimes that’s more obvious than in others. Just because
any number
of ludicrous statements can be made before a court doesn’t
mean that
(a) they carry any weight, or (b) that they should ever have been made
in the first place. (There’s any number of examples both on
plaintiffs’
and defendants’ sides, that litigation reform advocates are
likely to
provide you with.)
Yet chanters of the “fact-specific” mantra
will insist that these
cases must be filtered through a court before anyone can even point out
how silly they are. And this is even sillier. It doesn’t take
a
finely-honed legal mind to see that Lenz’s use is fair, or
that, after Sony, it’s clear that
time-shifting, even of cable television, or in digital formats, is fair
use.
Yet these sorts of arguments too often lead to commentators
giving
up on fair use as a reliable protector of speech. If fair use is going
to serve its purpose in allowing people to speak without prior legal
restrictions, people have to be able to use it
prospectively—consulting
a lawyer, or hiring one, shouldn’t be a prerequisite free
expression.
Sherwin Siy is an author at Public Knowledge discussing public rights in the emerging digital culture. Post has Some Rights Reserved.
