Supreme Court Won't Hear Dancing Baby Case... Despite Gov't Admitting 'Serious Legal Error'

from the dancing-without-end dept

Mon, Jun 19th 2017 6:26pm — Mike Masnick

Sometimes I think purgatory must be filing a lawsuit over a wrongful DMCA takedown notice. I'm pretty sure that's how Stephanie Lenz feels. After all, she's been fighting against Universal Music issuing a bogus DMCA takedown against her dancing baby, and I'm pretty sure that "baby" will be graduating high school before too long. Last we'd checked in, the Supreme Court was debating hearing the appeal in the case, and had asked the White House to weigh in. The White House responded last month with a truly bizarre argument, agreeing that the 9th Circuit's ruling contained a "significant legal error" but said that this case was "not a suitable vehicle for correcting that mistake."

Whether it was for that reason or for no reason at all, the Supreme Court has now decided not to hear the appeal, meaning that the case is back (once again) in District Court, where it may actually go to trial to determine if Universal Music knew that the video was fair use when it issued the initial takedown.

As we've discussed time and time again, this particular case is an important one, if Section 512(f) of the DMCA -- the part that says you cannot file bogus DMCA takedowns -- is to have any teeth. The problem, right now is that there are piles upon piles of abusive DMCA takedowns, targeting all sorts of content that is perfectly legitimate and non-infringing. Yet, because there is basically no punishment for issuing such takedowns, they continue. Unfortunately, this particular case keeps coming out with "mixed bag" rulings that probably won't help very much in the long term. While we may have hoped that the Supreme Court would clear things up and make sure 512(f) actually does its job, it appears that's unlikely to happen any time soon.

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Filed Under: 512(f), copyright, dancing baby, dmca 512, fair use, scotus, stephanie lenz, supreme court
Companies: umg

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My_Name_Here, 19 Jun 2017 @ 6:35pm

pending
Mostly, the problems of section 512 F are because there is just way too much infringement for it to be handled properly. The reality is that DMCA is broken for both sides - too much infringement, and too many DMCA notices as a result.

Too broad a success using section 512 f would undermine DMCA completely.
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  My_Name_Here, 19 Jun 2017 @ 6:41pm
  
  Re: pending
  Leigh, you are a fucktard. Stop posting fake nicks!
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Anonymous Coward, 19 Jun 2017 @ 6:37pm

Noticeably absent from Mike's post: Any recognition whatsoever that the DMCA does not actually stop widespread piracy. But I guess the "abuse" from only one side is what matters on Techdirt. But, hey, you still have the Ninth Circuit's opinion (for now).
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- Anonymous Coward, 19 Jun 2017 @ 6:42pm
  
  Re:
  If It actually stopped it I would really hate it.
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  - Anonymous Coward, 19 Jun 2017 @ 6:44pm
    
    Re: Re:
    LOL! I'm sure Mike agrees, hence the reason he doesn't discuss it. But that's a secret. Shh!
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- Anonymous Coward, 19 Jun 2017 @ 6:46pm
  
  Re:
  Noticeably absent from your comment: Any recognition whatsoever that the article is not about what you want it to be about.
  [ link to this | view in chronology ]
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    Anonymous Coward, 19 Jun 2017 @ 6:53pm
    
    Re: Re:
    Not sure I follow you. The article is about the Court not granting cert, which Mike feels takes teeth out of 512(f). (The issue he presumably wanted addressed was whether an objective standard should be applied instead of a mere subjective one.)
    
    Mike says: "The problem, right now is that there are piles upon piles of abusive DMCA takedowns, targeting all sorts of content that is perfectly legitimate and non-infringing. Yet, because there is basically no punishment for issuing such takedowns, they continue."
    
    There are other problems with the DMCA, like the fact that it doesn't actually curb piracy very well, but Mike does not address it. I'm simply pointing that Mike identifies one thing as the "problem" while ignoring others--like the huge elephant in the room.
    
    Hey, I get it. The failure to curb piracy is not a "problem" for Mike. He just won't explicitly say that (which is a problem for me because I feel it's dishonest).
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    - Anonymous Coward, 19 Jun 2017 @ 7:06pm
      
      Re: Re: Re:
      Speaking as someone who processes DMCA notices for a large US-based hosting provider, the inability of the DMCA to stop piracy is that the piracy doesn't seem to be occurring in the US. We have somewhere in the area of 3 million subscribers, and we get only a few hundred DMCA notices per month, and only a small portion of those are from large content providers like the *AAs. Therefore, if the content industry is to be believed about the level of piracy, the reasonable conclusion is that it isn't happening in the US, and the DMCA is useless against it.
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      - Anonymous Coward, 19 Jun 2017 @ 7:21pm
        
        Re: Re: Re: Re:
        Good point, and I'm sure it depends on the platform. Contrast yours with Google Search, which has removed about 1 billion URLs in the past year alone due to DMCA notices. (Of course, Google creates that problem by indexing sites in the first place, but that's a different issue.) Google does index foreign sites, and it receives many more notices from the RIAA/MPAA members than you do. Search is different than hosting, though, and I'm glad your service sounds like one of the good guys. And, for the record, I totally agree that notices are abused. All laws are abused. I just think it's irresponsible to discuss that fact out of context, as if it were "the problem" with the DMCA.
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        Anonymous Coward, 19 Jun 2017 @ 11:50pm
        
        Re: Re: Re: Re: Re:
        Ever noticed how the legacy gate keepers keep on attacking companies that compete with them, rather than the actual infringer? The want a market where content is a a rare and valuable content, and the really really want companies like Google/YouTube to act as gate keepers because that dam up the flow of free content, and make content rare again, so that they can make their excessive profits off of the backs of the creators, whose work they select for publication, and gain the copyright as part of the publication contract.
        
        Go and take a real good look around the Internet and you will find creators that are making a living, and find that what little piracy exists acts to increase their fan base, increasing rather than reducing their income.
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        Anonymous Coward, 20 Jun 2017 @ 12:43am
        
        Re: Re: Re: Re: Re:
        Well, abusive notices are "a" problem with the DMCA, but they're not "the" problem. The DMCA has lots of flaws. But as much as one might be willing to excuse content providers for getting it wrong from time to time, any money they stand to lose from piracy doesn't justify an improper takedown notice, even against a site that gets 3 views a year.
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        Lesath, 20 Jun 2017 @ 10:42am
        
        Re: Re: Re: Re: Re:
        
        Google creates that problem by indexing sites in the first place
        
        Hah, that's funny.
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        Anonymous Coward, 20 Jun 2017 @ 11:57am
        
        Re: Re: Re: Re: Re:
        The card catalog created the problem by exisiting? Do you realise how insane that sounds?
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    - Anonymous Coward, 20 Jun 2017 @ 5:00am
      
      Re: Re: Re:
      We know you don't follow. That's the bitch about cognitive dissonance.
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    - Canuck, 22 Jun 2017 @ 3:05am
      
      Re: Re: Re:
      The DMCA not curbing piracy is not a problem for society. So much for your "huge" elephant.
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- Anonymous Coward, 19 Jun 2017 @ 6:46pm
  
  Re:
  Noticeably absent from your comment: Any recognition whatsoever that the article is not about what you want it to be about.
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  - Anonymous Coward, 19 Jun 2017 @ 6:54pm
    
    Re: Re:
    I too sometimes double-post. I blame Mike. :)
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- That One Guy (profile), 19 Jun 2017 @ 7:34pm
  
  Re:
  The fact that it isn't as effective as some parties might like it isn't really of importance to anyone not playing the 'whack-a-mole game'.
  
  The fact that it's regularly abused and used to remove and/or chill perfectly legal speech is of importance, in large part because as it stands(and as pointed out in the article) there are no penalties for filing a bogus claim.
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  - Anonymous Coward, 19 Jun 2017 @ 7:50pm
    
    Re: Re:
    So abuse on a scale orders of magnitude greater doesn't matter because it's copyright owners being abused? I don't follow. How about recognition that it's a problem on both sides, with one side feeling the brunt of the pain?
    
    And there are penalties for abuse. They just aren't enforced very often. Kind of like the penalties for copyright infringement!
    
    It seems to me that you don't like copyright and you don't care. I'm 99% sure Mike agrees--but, of course, he won't just say it. Kudos to you.
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    - That One Guy (profile), 19 Jun 2017 @ 10:01pm
      
      Re: Re: Re:
      I didn't say infringement didn't happen, all I pointed out that the fact that the DMCA claim might not be as 'effective' as some may want it to be at combating infringement isn't really of concern to anyone but them. They can run around trying to stamp out something that will never be stamped out, or they can save their time and energy and change tactics such they can ignore the majority of copyright infringement as not a big deal.
      
      Infringement happens, and so long as it's not commercial, which I imagine the vast majority isn't, I'm not going to get overly concerned that it happens, especially when I see the people trying to 'combat' it using and abusing tools that cause significant 'collateral damage'.
      
      As for 'aren't enforced very often', that's complete and total crap. With the exception of one case where it was a default judgment the worst that typically happens is a slap on the wrist and a 'And don't let me catch you doing it again' I'm not aware of any cases where any real penalty was handed out for filing a bogus DMCA claim. If you have any examples that are even remotely in the ballpark of what people face thanks to bogus DMCA claims(removal of speech being the low end of things) then by all means, share them.
      
      On the other hand, you don't have to look very far at all to find example after example, after example, after example, after example, after example, after example of abuse of the law and accusations of infringement that results in perfectly legal content being taken down and/or people having to defend perfectly legal content because again, there is no penalty for filing bogus copyright claims, whereas the law is very much stacked against those on the receiving end of them.
      
      It seems to me that you don't like copyright and you don't care. I'm 99% sure Mike agrees--but, of course, he won't just say it. Kudos to you.
      
      Ah the good old lies and strawman, because nothing says "Take me seriously" like making blanket assumptions on the other person's position and then claiming that they're too dishonest to admit it should their actual position not match what you claimed they were.
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Anonymous Coward, 19 Jun 2017 @ 7:26pm

No harm done to Lenz even if was "fair use". All been driven by EFF hoping for precedent that facilitates piracy.
With a cute face for emotional appeal.

I'd go for over-reach, which isn't an abuse because key point is no harm done. -- Except for abuse of the legal system by clogging it with this crap dragged through for years.
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That Anonymous Coward (profile), 19 Jun 2017 @ 7:49pm

The law is meant to only benefit corporations.
Corporations can snap their fingers & make everyone else jump.
Corporations can not make mistakes or suffer any consequences for doing so.
Corporations can demand millions of dollars in damages, yet when they do what they charge others have done... its an oopsie.

SCOTUS shouldn't have been in a position to try to fix a shitty law. Congress should get off of their collective asses and fix it. No amount of corporate "support" is supposed to sway them, but we all know how that goes.

Its a video of a dancing baby, that every parent can identify with. The harm was caused by the law being lopsided. The corporations claim to be harmed for kajillions for every little mistake, yet their mistakes cause no harm at all.

Fair Use isn't a defense, it is a right.
Filing bogus takedowns and doubling down on them is supposed to be punishable as perjury, yet we have hundreds of millions of defective & wrong notices sent to a 3rd party search engine who hosts none of the content.
Everyone else is paying for the corporations getting a law that threatens life ruining consequences for everyone else, yet free passes for them.

We wonder why people have such little respect for copyright law. Its been twisted to protect 1 cartoon mouse costing us a public domain. 'Happy Birthday' was stolen from the public as a corporation took in untold millions they had no rights to. The estates of long dead authors kill books or new projects because they claim to have the rights for content made in the early 1900's.

The public domain is a wasteland, because nothing new can be built on anything that came before without permission. Those who can give the permission often won't because it might not make them enough money, or fit with their ideal of what it should be. Instead they keep remaking the same old stories to maintain it under their control. Look at all of the compilation albums that recently flooded the market so they could keep copyrights on that music from slipping out of their fingers.

SCOTUS should have heard this case because of the serious legal error & loudly told Congress to fix this shit. The baby in the video is grown now, the corporation will outlive the baby. Our laws shouldn't demand a multi-generational law suit to remind corporations the public has rights as well and not just limitations because the corporation faces no downside to trampling those rights.
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  My_Name_Here, 19 Jun 2017 @ 9:15pm
  
  Re:
  That idea is demonstrably false.
  
  Without DMCA, you would in theory have no YouTube. YouTube was built on the basic premise of accepting anything, publishing it, and only removing based on copyright complaints under the DMCA.
  
  Without DMCA, each copyright complaint would be a directly actionable lawsuit, and YouTube would have long ago been sued into oblivion. There would be no notice and take down, just notice of infringement and "please pay". In the case of YouTube, they may actually have faced charges for commercial copyright infringement.
  
  So no, the DMCA law isn't "only for the corporations". In application, it's all for the public, and the companies are left playing whack a mole.
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    My_Name_Here, 19 Jun 2017 @ 9:44pm
    
    Re: Re:
    This shit is getting old, Leigh. Or is it PaulT? It's probably PaulT.
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      My_Name_Here, 20 Jun 2017 @ 2:58am
      
      Re: Re: Re:
      None of the above. Actually me. ISP upgraded to IPv6 and well, the filter apparently doesn't handle me very well. So my posts actually get added!
      
      Now of course, logging in repeatedly and flagging my posts make you look petty ,but that's okay.
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      - PaulT (profile), 20 Jun 2017 @ 3:26am
        
        Re: Re: Re: Re:
        Wait... so the dickhead who is lying about me and pretending I'm impersonating him is not the "real" you? Or, are there multiple people using that name and whining about Tor and IPv6?
        
        This is getting confusing, even if you accept the fantasy world that you guys have created for each other...
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        MyNameHere (profile), 20 Jun 2017 @ 4:05am
        
        Re: Re: Re: Re: Re:
        I am doing this to fix the problem. Enough of the endless stupidity.
        
        Oh, and my icon to you Paul.
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        PaulT (profile), 20 Jun 2017 @ 4:34am
        
        Re: Re: Re: Re: Re: Re:
        "I am doing this to fix the problem"
        
        Doing what? Registering an account with a different name to the one being "abused"? Yeah that will fix it... This isn't the first time some troll has tried deliberately not registering in order to claim that his more idiotic statements aren't really him when called out on it, so this won't stop them.
        
        Not that it will stop whichever tosser keeps making shit up about me and other people here, but I can see what you're trying to do.
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        Anonymous Coward, 20 Jun 2017 @ 4:57am
        
        Re: Re: Re: Re: Re: Re: Re:
        Looks like Whatever has gone full circle.
        
        - Post dumb shit anonymously.
        - Whine when people call him out on it, then complains that it wasn't him.
        - Creates actual account.
        - Whines when his account and trolling gets flagged, bitches that his account and identity is being targeted.
        - Posts dumb shit anonymously again, under a different pseudonym, repeat ad nauseam.
        
        He'll be back to logging out again, just like average_joe/antidirt before him. It's only a matter of time. Trolls are remarkably consistent in that way.
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        PaulT (profile), 20 Jun 2017 @ 5:20am
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        My favourite was out_of_the_blue, who refused to create a login then bitched endlessly when someone signed in as such did it instead. I wonder if some joker will decide to create a login for this guy's handle now. Since he's so bad at thinking things through that he registered MyNameHere instead of My_Name_Here, thus allowing someone else to "steal" his original handle anyway?
        
        The sad thing is, I'm not entirely convinced this is the same idiot. Certainly the specific things he chooses to complain about instead of addressing the points raised by others is different, even if the overall attitude is the same. What's worse - on obsessed person having to keep reinventing himself after being told to get out too many times by the community he's abusing, or multiple people unable to deal with adult discussion?
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        Anonymous Coward, 20 Jun 2017 @ 5:58am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        The worst thing - we have both. out_of_the_blue, average_joe/antidirt, and the idiot too embarrassed to admit that Prenda Law fucked up. All at the same time. That's just sad.
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        Anonymous Coward, 20 Jun 2017 @ 6:12am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        I think the worst thing about it the fact that the russian trolls are more entertaining these days.
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        Anonymous Coward, 20 Jun 2017 @ 4:49am
        
        Re: Re: Re: Re: Re: Re:
        Did you clear the image rights to that screw picture? I know you refused to do so for the Rambler's Club picture. You really should have, after all fair use doesn't exist where you come from, and is considered a novel legal theory. Who's going to manufacture screws now that you stole a picture?
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  - That Anonymous Coward (profile), 20 Jun 2017 @ 8:45am
    
    Re: Re:
    Ummm because I'm a masochist...
    Where did I suggest killing off the DMCA?
    I'd love to know, because I wrote that post and never said that.
    
    What I did suggest is penalties for these asshats who compile made up lists & even their clients websites demanding they be delisted because DMCA... Google has to spend a bunch of money sifting these shitty notices and they don't host any of these sites. Rather than send the notice to the actual site, which if its outside the US can tell you to stuff your DMCA notice, they send it to an uninvolved 3rd party and make them pay for that privilege.
    
    Maybe you missed where they all were trying to sue YouTube into oblivion while at the same time uploading content they controlled & getting paid for it inbetween demanding it be taken down.
    
    Commercial copyright infringement means nothing anymore to corporations, labels regularly rip off artists and release things they don't have the rights to and the artists can't afford the lawsuit... even if they won huge damages they would all vanish into paying the lawyers. The corp would write off their defense as a cost of doing business.
    
    Perhaps if you had actually read what I wrote rather than spewing forth your YT hate, your comment might not have been flagged dipshit.
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Pseudonym, 19 Jun 2017 @ 8:13pm

Wow...
...this case outlived Prince.
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- Anonymous Coward, 19 Jun 2017 @ 9:43pm
  
  Re: Wow...
  What's so amazing about that?
  
  The copyright is going to outlive him by seventy years, at least.
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  - XcOM987 (profile), 20 Jun 2017 @ 6:03am
    
    Re: Re: Wow...
    Doubt it, Somehow the label will get the rights, if the rights are assigned to a label, and it's 70 years after death, does that mean we have to wait for the industry to fail then 70 years later all his songs go in to the public domain?
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Anonymous Coward, 19 Jun 2017 @ 9:44pm

Didn't take long for antidirt, out_of_the_blue and My_Name_Here to detach themselves from Shiva Ayyadurai and give a three-penis salute for a law that encourages false filings.
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  Anonymous Coward, 20 Jun 2017 @ 12:07am
  
  Re:
  Are you the Radical Left Posting Police (RLPP)?
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  - Anonymous Coward, 20 Jun 2017 @ 4:57am
    
    Re: Re:
    Go home Hamilton you're drunk.
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    - Anonymous Coward, 20 Jun 2017 @ 6:55am
      
      Re: Re: Re:
      Don't drink, ever, just like Bill O'Rielly.
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  - Anonymous Coward, 20 Jun 2017 @ 10:51am
    
    Re: Re:
    Hold on a sec ... so you're saying that concern over abusive corporate lawsuits against those least able to defend themselves is a political position held solely by the "radical left" ?
    
    Not just lefty or commie, but radical left! - Oh My!!! This sounds serious.
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    - Wendy Cockcroft, 21 Jun 2017 @ 5:18am
      
      Re: Re: Re:
      Holy, holy, holy is the corporation almighty, for behold, they can do no wrong. Government is the spawn of Satan.
      
      Am I doing alt-right right?
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Bruce C., 19 Jun 2017 @ 11:23pm

Actually I'm kind of on board with the SCOTUS on this one...
Fair use is a good argument to make against enforcement of a DMCA takedown, but it isn't that great an argument to make when trying to prove a takedown was fraudulent or made in bad faith. Even judges get the 4 points test wrong fairly frequently, so it would be difficult to prove that using an automated algorithm that gets x% of takedowns wrong is malicious.

I'd rather see a 512(f) lawsuit based on a valid license or an actual fraudulent claim where the claimant doesn't actually hold the copyright (for example, when TV networks would claim copyright on NASA footage that they used in their broadcast).
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- Anonymous Coward, 20 Jun 2017 @ 10:54am
  
  Re: Actually I'm kind of on board with the SCOTUS on this one...
  How many seconds was that music playing in the background as the baby danced to it and how loud was the music compared to the other audio present? Was this an actual attempt to copy the music? Get real.
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