Of Dancing Babies and Overzealous Takedowns: When “fair use is hard!” doesn’t cut it
Of Dancing Babies and Overzealous Takedowns: When “fair use is hard!” doesn’t cut it
Of Dancing Babies and Overzealous Takedowns: When “fair use is hard!” doesn’t cut it

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    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.” 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. 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. 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?

    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?

    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. 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.

    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. 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.

    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. 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.