Why It's Almost Impossible To Get Punished For A Bogus DMCA Takedown
from the not-going-to-happen dept
Yesterday, we wrote about the latest in the long running saga that is Stephanie Lenz's battle (with the help of the EFF) over whether or not Universal Music was right to issue a DMCA takedown for her 29 second video of her toddler son dancing to a (barely audible) Prince song. Once again, here's the video.[District Court Judge Jeremy] Fogel said that it isn't clear that EFF has met the high burden of showing that Universal exhibited "subjective bad faith."That's a pretty tall order, and a clear weakness in the DMCA in preventing bogus takedowns (an all too common phenomenon). While the EFF properly points out that Universal's employee who sent the DMCA "had no idea what to look for," that still might not be enough to show subjective bad faith -- just laziness.
EFF would have to show that there's no way the video was not fair use, first of all. In addition, EFF lawyers would have to show "there was some concerted activity on Universal's part to blind itself to that fact—that even knowing they had nothing to stand on with regards to fair use, they put out a takedown." Even if EFF could show that Universal Music acted recklessly or with negligence—that wouldn't be enough.
Additionally, there is some skepticism about if it's worth fighting this through, since the amount of money at stake is minimal:
The amount of damages EFF is fighting for is tiny, in the grand scheme of things. And Fogel also expressed skepticism that EFF could ask for much in damages. He has already limited the amount they can ask for. EFF is asking for compensation for 10 hours of Lenz's time, spent dealing with the takedown notice before she contacted EFF, based on the Pennsylvania minimum wage at the time of $6.25 per hour. They're also asking for compensation $1,275 for the time that EFF attorneys spent advising her pre-suit.I understand the principle argument -- but courts often aren't that interested in spending time on such cases, which they believe are wasting time from cases that are more important. At the very least, Judge Fogel appears willing to let a jury weigh in on this one, and has noted that despite all of the hurdles EFF and Lenz face, it's not a complete slam dunk for Universal: "A reasonable fact-finder could conclude, that this is an action taken in subjective bad faith."
Despite the fact that not much money can be won, in an interview with Ars, [EFF's Corynne] McSherry said that the principle is still important, so that content owners will pause before they shoot out takedown requests.
And so the case moves on. I'm still betting that Universal Music will be happy with the end result, and I worry that the resulting precedent will be used to justify more broad and bogus takedowns. Hopefully, I'm proven wrong.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: bogus takedown, dancing baby, dmca, fair use, stephanie lenz
Companies: eff, universal music
Reader Comments
Subscribe: RSS
View by: Time | Thread
note to self
[ link to this | view in chronology ]
Sorry, Mike: you won't be proven wrong. Even if UMG wins, the payout is so insignificant, those who abuse the system will still do it.
It's no different than those who receive them: pay out or fight it, and the cheaper alternative will generally win.
Principle? That's just another word for foolish.
Until everyone fights back, one case doesn't change a thing.
[ link to this | view in chronology ]
Re:
I disagree, it HAS to start somewhere, and this is a good case to get the ball rolling.
[ link to this | view in chronology ]
Re: Re:
Litigation costs money, and businesses, though proud someone's fighting, aren't going to risk what little money they have on the hopes their outcome will be similar.
We've seen all too well judges, and juries, don't share the same attitude in cases like this.
Right, Milton?
[ link to this | view in chronology ]
Re:
Is this the start of bogus DMCA takedown trolling?
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
This reminds me of the documentary "Doctored" where they interviewed someone from the AMA who said that the millions of dollars they lose to medical lawsuits each year is a drop in the bucket.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
or
...there be fees awarded
Pick one.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Well, in this case, the reason is NO ACTUAL HARM.
This is SUCH a silly case to work with. Remember, EFF, you just might run into geezers like me who see the facts as above and turn your damned snarky imposition on their time to sit in judgment on this SILLY case against you.
[ link to this | view in chronology ]
Re: Well, in this case, the reason is NO ACTUAL HARM.
You favor the subjective approach far too strongly. If anything making "harm" objective would be a good start.
[ link to this | view in chronology ]
Re: Well, in this case, the reason is NO ACTUAL HARM.
But the rest of the world does not have the video to play all they want.
[ link to this | view in chronology ]
Re: Well, in this case, the reason is NO ACTUAL HARM.
Just like UMG still has all their music to play (and sell) as much as they want, despite it also being made available for illegal downloading ? So no harm there, right ? And yet they still go to court asking for $250,000 per song...
And why should she remove the audio from the video, when using that audio was found to be fair use ?
She has a constitutional right to freedom of speech, and UMG prevented her from exercising it. No harm, really ?
[ link to this | view in chronology ]
Re: Well, in this case, the reason is NO ACTUAL HARM.
This isn't like a video of some kids playing soccer and someone lays a sound track on it to make it funny.
This is people in their home enjoying life when everything aligns properly and you get what once was called a Kodak Moment™. Taking the the audio off, or as you suggest, just taking the music off(something well beyond the abilities of the average person filming something with their phone) pretty much destroys the entire experience. This is why a few years ago your handlers quit making movies without sound.
[ link to this | view in chronology ]
Re: Well, in this case, the reason is NO ACTUAL HARM.
[ link to this | view in chronology ]
Re: Well, in this case, the reason is NO ACTUAL HARM.
Sure the world could just roll over but isn't the public's rights important?
[ link to this | view in chronology ]
Bad faith
How is having someone look for something, when they don't know what to look for, not bad faith? The only way it could be worse I'd think is if they didn't have anyone look at it (which they automated takedowns do).
Sorry I sold you this fake painting, but I asked someone on the street if it was legit and they said they thought so...
[ link to this | view in chronology ]
what the court should take into consideration is that the case may not be important to it but is important to the person/people involved. the longer the entertainment industries can get away with this sort of thing, the longer they will and the more false take downs they will issue. the court also stated that it had limited the amount that could be claimed from UMG. why was that done? UMG, like the other members of this industry always want to claim the maximum damages possible, regardless of whether they are justified or the harm that will be done to the often innocent accused
[ link to this | view in chronology ]
The test that the district court adopted here is that a factfinder might infer subjective bad faith given the fact that a right holder did not consider fair use before issuing a takedown notice. I know that bit has been championed by the anti-copyright crusaders, and rightfully so, but I think as the arstechnica piece pointed out--and as Mike is now apparently understanding as well--it's not much of a victory.
First of all, this is only the "law of the case." This case can be cited by other courts as being persuasive, and they can choose to follow it if they like, but no other court has to follow it. In fact, this very judge in the very next case can use a contrary test. It's precedent, and other courts might find it compelling and adopt its reasoning, but no other court has to do so.
Secondly, and more importantly, the test is subjective bad faith. This means basically that they have to issue the takedown notice knowing that it's completely bogus. Given the elusive nature of fair use, that's an incredibly high burden. So high in fact, that I cannot imagine a scenario where it would that way in practice.
And the discovery that commenced in the Lenz case demonstrates the point. UMG had a lawyer who set criteria for and supervised the employee who considered whether the use was authorized. Part of Lenz's argument is that considering whether it's authorized is incomplete unless fair use is also considered. But how could have UMG's counsel have known that there's a duty to consider fair use? No court before (or after, that I know of) has ever said that fair use must be considered before issuing a takedown notice.
It cannot be subjective bad faith to fail to discharge an unknown--and unknowable--duty. For Lenz to win, the factfinder would have to find as a fact that UMG knew it had to consider fair use, considered it, found it to be fair use, and then issued the notice anyway. Not gonna happen.
Ultimately, I don't think the court's test is going to be adopted anyway. I don't think fair use is a use authorized by law. It's a use permitted by law as an equitable defense to a prima facie case of infringement. I think it makes a lick of sense to say that a plaintiff like UMG can in good faith file a federal lawsuit for infringement based on a use like Lenz's, but then to say that filing a takedown notice upon the same information is a bad faith misrepresentation.
If the same facts support a lawsuit, then surely they support a takedown notice (which is intended to avoid the lawsuit, and is very beneficial to infringers everywhere who get away with infringement).
[ link to this | view in chronology ]
Re:
http://www.dcindexes.com/index.php
[ link to this | view in chronology ]
Re:
Not that common sense ever has anything to do with these matters.
[ link to this | view in chronology ]
Re: Re:
This used to be one of the more egregious injustices of copyright law, until the aggressive expansions of the last couple of decades.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re:
Not that common sense ever has anything to do with these matters.
I agree that the use here is probably fair and the better course would have been not to issue the takedown notice. But that's not the issue. The issue is whether it was subjective bad faith to do so. Considering that fair use is a defense and that the would-be plaintiff has a legitimate, nonfrivolous claim of infringement, I don't see how any would-be plaintiff could ever be in subjective bad faith so long as there's copying.
[ link to this | view in chronology ]
Re: Re: Re:
So you are basically admitting that there is no punishment for using the DMCA to censor people, so long as they use any scrap of material the would-be plaintiff could considering copying.
And yet you wonder why we don't like the DMCA.
[ link to this | view in chronology ]
Re: Re: Re: Re:
No, the intent of the law is to stop company A from claiming copyright on something that they know is not theirs, thus making a false claim.
Fair use is a judgement call, a defense really, saying "yes, I infringed but...", and for DMCA, the existence of the "yes, I infringed" part is enough to to cover the requirements under the law.
Now, I would also hope that Mike and his angry toadies would be nice enough to admit that I called this one EXACTLY right, that the judge ruled almost to the word on what I said.
It should also be pointed out that once again, EFF fails, and fails at defending something related to Google. Hmmm. No more matching funds for you if you keep this up!
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
You're under the mistaken impression that anyone gives a shit about you.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
I thought her name was Stephanie Lenz?
You sir, fail at life.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
People seem to have forgotten that you don't need YouTube to share a video of your kid dancing. Email the video to friends and family and be done with it.
Putting it on YT can imply that you're seeking attention for the video outside of simply sharing a personal family moment.
And if you want to do that, you're going to have to follow a different set of rules.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
Baloney. I do it all the time.
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
message_size_limit = 10240000
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
Really anything larger than 10MB should be sent over a file host like dropbox or yousendit.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
Why?
And I don't know what email server you and the guy below me are using, but you're getting hosed.
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
That is laziness of the employee, bad faith of Universal for appointing said person to that position.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
wait? what?
Just when I thought this DMCA shit had reached maximum olfactory potency, it gets worse ...
[ link to this | view in chronology ]
I think your problem here is that you are trying to lump everything together, rather than looking at the different types of takedowns.
A bogus takedown would be someone intentionally issuing a DMCA notice for material that they clearly know they don't own, such as a band or artist signed to another label, perhaps competitor. That is bogus, and should be dealt with to the maximum effects of the law.
Then you hit the middle ground, which includes fair use. Since fair use isn't black letter law, but rather a system of test factors and judicial latitude, it's hard for a rights holder to be certain here. Since they cannot be sure, it really is in their best interest to issue a DMCA and allow the site owner or hosting company to deal with the issue within the boundaries of the law. Remember, all the host seemed to need by the law is a reasonable claim of fair use to nullify their liability. These DMCA notices (not "takedowns", they are just notices) are perfectly legit and totally within the both the scope and the spirit of the law.
Where the real issue lies is with hosting companies / site owners who choose to "remove first, ask questions later" rather than deal with DMCA in the ways allowed under the law. That a hosting company chooses to shut down an entire blogging site over a single DMCA notice rather than deal with the site owner is their error, not the right holders error.
Remember too: Fair use is a "yes I am infringing but..." answer. The DMCA notice is only that the work is being used without permission. Fair use claims are the answer of "I didn't need permission because...".
That is how it's suppose to work. Perhaps you want to try stringing up the hosts and service providers for being dicks, rather than trying to blame the rights holders for following the law.
[ link to this | view in chronology ]
Re:
How is issuing a notice for a less than thirty second clip of barely audible music in the background not being a dick?
[ link to this | view in chronology ]
Re:
And finally, content owners would love for the public to believe otherwise, but fair use is not "yes I am infringing but..." Rather, the word infringing does not apply when it's fair use. No rights are being infringed; the content owner's rights simply do not cover certain types of uses. One can claim fair use and still be accused of infringement, and then a court will test the use against the four prongs and make a determination one way or the other. Until then, it's not infringement.
Also, IANAL.
[ link to this | view in chronology ]
Looks like a one way street in the town of Laissez-faire.
This growing metropolis located next to the historical city of Hypocrisy and nestled in the country of IveGotMine is experiencing increased tourist activity due to its two tiered feudalism. You too can enjoy the many wonders found there if you don't mind the stench.
[ link to this | view in chronology ]
Wasting the Jury's Time
I can sympathize with Judge Fogel's desire to let this case go to a jury. Yet Judge Fogel certainly has some obligation to those potential jurors: He should not waste their time.
His court sits in a Ninth Circuit that is not known for it's fairness. If Judge Fogel lets this case go to a jury, only to have the Ninth Circuit disregard that jury's verdict, then Judge Fogel has compounded the public unfairness here—by wasting those jurors' time.
If there are no material facts in dispute, then a ruling on summary judgement is appropriate. Fair use is an equitable doctrine. If Judge Fogel can't bring himself to apply an unfair circuit precedent, then he should not try to dodge the issue by passing the buck to a jury—wasting their time—compounding the unfairness—only to have the Ninth Circuit do their worst.
If Judge Fogel can't bring himself to apply an unfair circuit precedent, then he should resign his job. He can get better pay in private practice, anyhow.
[ link to this | view in chronology ]
Re: Wasting the Jury's Time
Why not? This is a perfectly good way to get some additional focus on an issue that needs attention. Good for Judge Fogel!
[ link to this | view in chronology ]
Re: Re: Wasting the Jury's Time
Judge Fogel should not be holding trials as publicity stunts.
The jurors are conscripts—drafted into service for the duration. They are expected to follow the law. But what kind of expectation is that?—when the judge himself refuses to do his duty. It may well be that the judge's conscience rebels at that duty. But he, at least, has the option of walking off the job in protest.
Suppose the most likely outcome of this trial: The jury finds for Lenz, awards damages against UMG. Then, upon appeal, the Ninth Circuit reverses the judge, sets aside the jury's verdict —ignores it— and rules according to their precedent. What would really have been accomplished by that?
[ link to this | view in chronology ]