Category: DMCA

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Internet Safe Harbors and the Transformation of Copyright Law will be published in the Notre Dame Law Review

My article, Internet Safe Harbors and the Transformation of Copyright Law, will be published in the Notre Dame Law Review, Vol. 93, 2017, later this year.

This Article shows how the substantive balance of copyright law has been overshadowed online by the system of intermediary safe harbors enacted as part of the Digital Millennium Copyright Act (“DMCA”) in 1998. The Internet safe harbors and the system of notice-and-takedown fundamentally changed the incentives of platforms, users, and rightsholders in relation to claims of copyright infringement. These different incentives interact to yield a functional balance of copyright online that diverges markedly from the experience of copyright law in traditional media environments. This article also explores a second divergence: the DMCA’s safe harbor system is being superseded by private agreements between rightsholders and large commercial Internet platforms made in the shadow of those safe harbors. These agreements relate to automatic copyright filtering systems, such as YouTube’s Content ID, that not only return platforms to their gatekeeping role, but encode that role in algorithms and software.

The normative implications of these developments are contestable. Fair use and other axioms of copyright law still nominally apply online; but in practice, the safe harbors and private agreements made in the shadow of those safe harbors are now far more important determinants of online behavior than whether that conduct is, or is not, substantively in compliance with copyright law. The diminished relevance of substantive copyright law to online expression has benefits and costs that appear fundamentally incommensurable. Compared to the offline world, online platforms are typically more permissive of infringement, and more open to new and unexpected speech and new forms of cultural participation. However, speech on these platforms is also more vulnerable to over-reaching claims by rightsholders. There is no easy metric for comparing the value of non-infringing expression enabled by the safe harbors to that which has been unjustifiably suppressed by misuse of the notice-and-takedown system. Likewise, the harm that copyright infringement does to rightsholders is not easy to calculate, nor is it easy to weigh against the many benefits of the safe harbors.

DMCA-plus agreements raise additional considerations. Automatic copyright enforcement systems have obvious advantages for both platforms and rightsholders; they may also allow platforms to be more hospitable to certain types of user content. However, automated enforcement systems may also place an undue burden on fair use and other forms of non-infringing speech. The design of copyright enforcement robots encodes a series of policy choices made by platforms and rightsholders and, as a result, subjects online speech and cultural participation to a new layer of private ordering and private control. In the future, private interests, not public policy will determine the conditions under which users get to participate in online platforms that adopt these systems. In a world where communication and expression is policed by copyright robots, the substantive content of copyright law matters only to the extent that those with power decide that it should matter.

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Lessig v. Liberation Music is almost too good to be true

Fair use and DMCA takedowns

Lawrence Lessig has written many fine books and articles, played a key role in founding the Creative Commons and worked tirelessly to promote the interests of the public in copyright law. And now he has also given us a DMCA takedown case that perfectly illustrates the tension between fair use and the takedown procedure.

Lessig v. Liberation Music Pty Ltd 1:13-cv-12028 (D. Mass. Aug 22, 2013)

Complaint in Lessig_v_Liberation_Music

On June 4, 2010,  Lessig delivered the keynote address at a Creative Commons conference in Seoul, South Korea. In the course of his 49-minute lecture Lessig discussed the present and future of cultural and technological innovation.

The lecture included several clips of amateur music videos in order to illustrate cultural developments in the age of the Internet.

Lisztomania

One set of clips depicts groups of people dancing to the same song, “Lisztomania,” by the band Phoenix. The “Lisztomania” craze began when a YouTube user, called “avoidant consumer,” posted on YouTube a video combining scenes from several movies, with the song “Lisztomania” serving as the soundtrack to the video. Inspired by avoidant consumer’s work, other YouTube users from around the world created their own versions of the video, with real people “performing” the roles of the actors in the original movies, and again with “Lisztomania” as the soundtrack. Lessig’s evident purpose in including these clips in his lecture was to illustrate how young people are using videos and other tools to create and communicate via the Internet.

Lessig taken down

Liberation Music sent a takedown notice to Youtube and then threatened to sue Lessig when he made a counter-notifaction. Rather than risk statutory damages and banishment from Youtube, Lessig withdrew his counter-notice and filed this complaint instead.

Fair Use and the DMCA notice and takedown process

Is this fair use?

Yes. If the facts as set out in the complaint are true, and I have no reason to doubt them, this is quite obviously fair use.

Lessig’s use His use was self-evidently highly “transformative” as that term is used in the fair use case law.

 The original work exists to

entertain music fans, Lessig’s use of small slices of the work was intended to inform and illustrate a broader cultural phenomenon.

Lessig’s use would not have effected the market for or value of the Lisztomania composition or sound recording (a) because of it was transformative (see above) and (b) because the

five clips used in the lecture were fairly short compared to the original track — they ranged from

10 seconds to 47 seconds.

Is it wrong to file a takedown notice in the face of a compelling fair use defense?

The DMCA provisions that set up the notice and takedown regime (§ 512 of the Copyright Act) do not make any explicit reference to the fair use doctrine. However, for a copyright owner to proceed with “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,” the copyright owner must determine whether the material makes fair use of the copyright. (See Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150 (N.D. Cal. 2008))

I have no doubt that Lessig will his declaratory judgment action. But prevailing on the misrepresentation claim under § 512(f) might be harder. He will have to show that the copyright owner acted in bad faith by issuing a takedown notice without “proper consideration” of the fair use doctrine. Case law suggests that this is a subjective, rather than objective standard.

Assuming that there is no admission by the defendant, the court will have to determine whether this particular claim to fair use was so obviously valid that it merited further consideration before filing the DMCA notice. The assertion by Liberation Music seems so reckless to me that this requirement may well have been met.