Mar 202016

The following originally appeared on Techdirt.

I got very excited yesterday when I saw a court system alert that there was a new decision out in the appeal of Lenz v. Universal. This was the Dancing Baby case where a toddler rocking out to a Prince song was seen as such an affront to Prince’s exclusive rights in his songs that his agent Universal Music felt it necessary to send a DMCA takedown notice to YouTube to have the video removed. Heaven forbid people share videos of their babies dancing to unlicensed music.

Of course, they shouldn’t need licenses, because videos like this one clearly make fair use of the music at issue. So Stephanie Lenz, whose video this was, through her lawyers at the EFF, sued Universal under Section 512(f) of the DMCA for having wrongfully caused her video to be taken down.

Last year, the Ninth Circuit heard the case on appeal and then in September issued a decision that generally pleased no one. Both Universal and Lenz petitioned for the Ninth Circuit to reconsider the decision en banc. En banc review was particularly important because the decision suggested that the panel felt hamstrung by the Ninth Circuit’s earlier decision in Rossi v. MPAA, a decision which had the effect of making it functionally impossible for people whose content had been wrongfully taken down to ever successfully sue the parties who had caused that to happen.

Although the updated language exorcises some unhelpful, under-litigated ideas that suggested automated takedown systems could be a “valid and good faith” way of processing takedowns while considering fair use, the new, amended decision does little to remediate any of the more serious underlying problems from the last version. The one bright spot from before fortunately remains: the Ninth Circuit has now made clear that fair use is something that takedown notice senders must consider before sending them. But as for what happens when they don’t, or what happens when they get it wrong, that part is still a confusing mess. The reissued decision doubles-down on the contention from Rossi that a takedown notice sender must have just a subjectively reasonable belief – not an objectively reasonable one – that the content in question is infringing. And, according to the majority of the three-judge panel (there was a dissent), it is for a jury to decide whether that belief was reasonable.

The fear from September remains that there is no real deterrent to people sending wrongful takedown notices that cause legitimate, non-infringing speech to be removed from the Internet. It is expensive and impractical to sue to be compensated for the harm this censorship causes, and having to do it before a jury, with an extremely high subjective standard, makes doing so even more unrealistic.

It’s possible that the Ninth Circuit may actually see the plaintiff as having been vindicated here; after all, she may still go to a jury and be awarded damages to compensate her, potentially even for the attorneys’ fees expended in fighting this fight. But note that the issue of whether she is due anything, and, if so, how much, has not yet been fully litigated, despite this case having been going on since 2007! Not everyone whose content is removed is as tenacious as Ms. Lenz or her EFF counsel, and not everyone can even begin to fight the fight when their content is unjustly removed.

Furthermore, sometimes the value in having speech posted on the Internet comes from having it posted *then*. No amount of compensation can truly make up for the effect of the censorship on a speaker’s right to be heard when he or she wanted to be heard. Consider, as we are in the thick of election season, what happens when election-related speech is taken down shortly before a vote. As was pointed out in several amicus briefs in support of the en banc rehearing, including one I filed on behalf of the Organization of Transformative Works and Public Knowledge, such DMCA-enabled censorship has happened before.

Suing won’t solve that problem, but at least the threat of a lawsuit might make someone think twice before sending a wrongful takedown notice. But if a lawsuit isn’t a realistic possibility then that deterrence won’t happen. What the parties supporting the plaintiff have been worried about is that the DMCA allows for an unprecedented form of censorship we would not normally allow. Think about it: if there were no DMCA then people who wanted content removed from the Internet would have to file well-pleaded and well-substantiated lawsuits articulating why the content in question was so wrongful that an injunction compelling its removal was justified in the face of any defense. In other words, without the DMCA, the question of fair use would get considered, and it would get considered by a judge.

But thanks to the DMCA would-be censors can save the time, cost, and burden of having to make sure they got the fair use question right before causing content to be removed – and very likely with a complete lack of judicial oversight to hold them to account if they didn’t. No judge may ever scrutinize their decision to ensure that they didn’t abuse the shortcut to censorship to the DMCA affords them. Instead, Thursday’s decision only further ensures that this sort of abuse will continue unabated.

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