Jul 162015

Cross-posted from Techdirt.

Earlier this week the Ninth Circuit heard oral arguments in the appeal of Lenz v. Universal. This was the case where Stephanie Lenz sued Universal because Universal had sent YouTube a takedown notice demanding it delete the home movie she had posted of her toddler dancing, simply because music by Prince was audible in the background. It’s a case whose resolution has been pending since 2007, despite the fact that it involves the interpretation of a fundamental part of the DMCA’s operation.

The portion of the DMCA at issue in this case is Section 512 of the copyright statute, which the DMCA added in 1998 along with Section 1201. As with Section 1201, Section 512 reflects a certain naivete by Congress in thinking any part of the DMCA was a good idea, rather than the innovation-choking and speech- chilling mess it has turned out to be. But looking at the statutory language you can kind of see how Congress thought it was all going to work, what with the internal checks and balances they put into the DMCA to prevent it from being abused. Unfortunately, while even as intended there are some severe shortcomings to how this balance was conceptualized, what’s worse is how it has not even been working as designed.

One such problem is with the content takedown system incorporated into Section 512. The point of Section 512 is to make it possible for intermediaries to host the rich universe of online content users depend on intermediaries to host. It does this by shifting the burden of having to police users’ content for potential copyright infringement from these intermediaries to copyright owners, who are better positioned to do it. Without this shift more online speech would likely be chilled, either because the fear of being held liable for hosting users’ infringing content would prompt intermediaries to over-censor legitimate content, or because the possibility of being held liable for user content would make being an Internet intermediary hosting it too crushingly high a risk to attempt at all.

Copyright owners often grumble about having the policing be their responsibility, but these complaints ignore the awesome power they get in return: by merely sending a takedown notice they are able, without any litigation or court order or third-party review, to cause online speech to be removed from the Internet. It is an awesome power, and it is one that Congress required them to use responsibly. That’s why the DMCA includes Section 512(f), as a mechanism to hold wayward parties accountable when they wield this powered unjustifiably.

Unfortunately this is a section of the statute that has lost much of its bite. A 2004 decision by the Ninth Circuit, Rossi v. MPAA, read into the statute a certain degree of equivocation about what the “good faith” requirement of a takedown notice actually demanded. Nonetheless, the statute on its face still requires that a valid takedown notice include a statement that the party sending it 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.” (emphasis added)

The big question in this case is what the “or the law” part means in terms of making a takedown notice legitimate. No one is disputing that the notice that took down the dancing baby video was authorized by the agent in charge of administering the rights to Prince’s music (at the hearing we learned that this is no longer Universal Music, but it was back then). But copyright is always contextual. In other words, just because someone uses (e.g., by posting to the Internet) a copyrighted work does not mean they have automatically infringed that work’s copyright. There may well be circumstances enabling that use, like a license (including a statutory or compulsory license), or fair use.

Whether the “or the law” part included authorization pursuant to fair use is what a significant part of the hearing addressed. Universal said that it didn’t, arguing that fair use was only an affirmative defense. By “affirmative defense” Universal meant that fair use was just something you could argue as a defense to being accused of copyright infringement in a lawsuit but not something that existed more integrally as part of copyright law itself. As such, Universal argued, it was not necessary to consider it when sending a takedown notice claiming that the use in question was not authorized.

EFF, arguing for Lenz, disagreed, however, arguing that the articulation of fair use in the statute, at 17 U.S.C. § 107, made fair use more than just a defense; rather, it is a statutory limitation constraining the scope of the copyright owner’s exclusive rights and just as much a part of the law as the parts enumerating those rights. As a result, the EFF argued, a copyright owner sending a takedown notice always has to consider whether the rights the notice is seeking to vindicate are at all constrained by the sort of use being made of the work. If the copyright owner doesn’t do that then it could be subject to the sanctions of 512(f).

Although one can never read the tea leaves from an oral argument, the judges did not seem to buy Universal’s argument that fair use was just an affirmative defense. They seemed more persuaded by the EFF’s position that it was enough a part of the copyright statute for at least some consideration of it to be required for a takedown notice to be valid. But then the court became concerned with the question of how much consideration was needed. After all, as Universal suggested (and EFF disagreed with), there may even be some question about whether the use of Prince’s music in the dancing baby video was itself fair. Fair use is a very squishy thing always dependent on the particular context of a particular use of a copyrighted work. Often it takes massive amounts of litigation to determine whether a use was fair, so the judges spent a lot of time questioning both parties about what a copyright owner (or its agent), if the statute requires them to consider fair use, must actually do on that front in order to not run afoul of the law’s requirements when sending takedown notices.

Universal argued that because it (and other similarly situated copyright holders) needed to send millions of takedown notices it would simply be too burdensome to have to consider fair use for each and every one of them. To this the EFF suggested that tools may be available to help triage the likely contenders needing closer analysis, but something else the EFF said I think drives the point home more aptly.

The DMCA also includes a “put back” process, at Section 512(g), so that Internet users’ whose content has wrongfully been removed can have it replaced. Universal argued that this process should be enough to deal with any wrongful takedowns, as it allows for wrongfully removed content to be replaced. (Universal also argued that this “put back” notice was also necessary to give the copyright holder notice that fair use might be an issue to consider.) But if this were the case then why have a Section 512(f) in the statute at all? There is nothing in the statute that suggests that a “put back” notice needs to happen for Section 512(f) to be able to operate. Furthermore, although the record in this case was unfortunately poor as to what percentage of removed content was ever put back pursuant to 512(g) put back notices, as the EFF noted, even if it were a very small percentage of removed content, a small percentage of millions of instances suggests that quite a bit of non-infringing content is still getting removed.

Moreover, there is no reason to suspect that the content that has been restored in response to these put back notices represents the entire universe of wrongfully removed content. There is little basis to presume that everyone else who had their content removed simply shrugged it off as a fair cop. Because a put back notice can conspicuously put a user in the line of fire of a copyright owner many users might not have wanted to tempt the trouble. Also, as the EFF observed, the DMCA takedown system is fairly labyrinth and often needs the assistance of counsel to help navigate it. This form of support is likely not available to most, and even in the case of Ms. Lenz it did not readily result in her home video of her kid dancing being restored.

Ultimately Universal is arguing that this outcome is ok: despite this harm to legitimate speech, copyright owners should nonetheless be entitled to cause millions and millions of instances of user-generated content to disappear from the Internet with very little effort, inconvenience, or oversight on their part. But it’s an argument that fails to recognize just what a privilege the takedown system represents. It is a huge shortcut, giving private parties the extraordinary power to be censors over Internet content without the trouble and expense of a lawsuit to first determine whether their rights have truly been infringed. With the DMCA copyright owners become judge, jury, and executioner over other people’s speech all on their own, and when they decide to sentence content for disappearance they get to use the takedown notice as the gun to the head of the intermediary to force it do the deed.

Universal spent a lot of time arguing that the DMCA was intended to be this sort of shortcut in order to be a “rapid response” system to online infringements. But the “rapid response” the DMCA offers is that copyright owners don’t first have to go to court. Nothing in statute suggests copyright owners are entitled to a response so rapid that they are excused from exercising the appropriate care a valid takedown notice requires – or that even a lawsuit would require. As Universal would have it, they get to be censors over other people’s speech without any of the risk normally involved if they had to use the courts to vindicate their rights. Note that nothing in the DMCA precludes a copyright owner from suing an Internet user who has infringed its copyright. But with a lawsuit comes the risk that a copyright owner might have to pay the fees and costs of the defendant should their claims of infringement found unmeritorious (including because the targeted use was fair). According to Universal, however, copyright owners should face no similar consequence should the claims underpinning their takedown notices be similarly specious. Copyright owners should simply be able to cause content to be deleted at will, with no risk of any penalty to them for being wrong.

But that’s not what the statute says. As was also argued at the hearing, Section 512(f) creates the penalty necessary to deter wrongful takedowns because without there being one, all the risk of the takedown system would be borne by those whose free speech rights (both to speak freely and to freely consume what others have said) are undermined by copyright owners’ glib censorship. As the saying goes, with great power comes great responsibility, and it hardly misconstrues Congress’s intent, or the express language of the statute, to demand copyright owners to carefully exercise that responsibility before letting their takedown notices fly, and to sanction them when they don’t.

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