Why Google, Twitter and Tumblr Are Backing the ‘Dancing Baby’

A six-year-old viral video sparks an important battle over copyright law

  • Share
  • Read Later
Laszlo Balogh / REUTERS

U.S. musician Prince performs on the main stage during Budapest's Sziget music festival on an island in the Danube River August 9, 2011.

Remember the Pennsylvania Mom who posted a 29-second home movie of her toddler dancing to Prince’s “Let’s Go Crazy,” prompting the purple-hued pop star’s record label to demand that YouTube take down the video? That was in 2007. Now, six years later, the legal battle ignited by a 13-month-old with a penchant for His Royal Badness is approaching a critical juncture, in a case with important ramifications for copyright law and the nation’s largest Internet and entertainment companies.

When Universal Music demanded that YouTube remove the clip, the Google-owned video giant complied, but Stephanie Lenz, whose son Holden was the star of the video, decided to fight back. With the help of the Electronic Frontier Foundation, a San Francisco digital rights group, Lenz sued Universal Music for misrepresentation of copyright claims under the Digital Millennium Copyright Act, a 1998 law that defined the intellectual property rights and limits of companies in the Internet age.

The fundamental issue presented by the case is whether Internet users — from homemakers like Lenz, to artists, scholars, journalists and political activists — have any meaningful remedy for, and protection against, wrongful claims of copyright infringement. The legal dispute sparked by a pajama-clad toddler who loved Prince has become a closely watched test case of copyright law. The verdict could help crack down on the increasingly rampant abuse of takedown notices to suppress online criticism, stifle dissent, and violate free speech rights.

Lenz argued that her video (see below) was protected by the “fair use” principle of copyright law, and said that Universal Music’s actions harmed her financially and violated her First Amendment rights. Since then the case has wound its way through the legal system, with both Lenz and Universal Music arguing for summary judgment. After a federal judge in California said that the case could only be decided by a trial, both Lenz and Universal Music appealed to the United States Court of Appeals for the Ninth Circuit, which is preparing to hear the case.

Universal Music disputes Lenz’s assertion that she was harmed financially by the takedown notice, and argues that she has produced no evidence that the record label knowingly misrepresented its copyright claim. Lenz argues that Universal Music should have considered whether her video was protected by the “fair use” principle, but the record label disputes that such a requirement exists in the DMCA. Finally, Universal Music argues that Lenz has produced no evidence supporting her claim that the record label was “willfully blind” to “fair use” as it pertained to her video.

(MORE: How Google Beat Viacom in the Landmark YouTube Copyright Case — Again)

Lenz has some powerful allies. On Friday, lawyers for Google, Twitter, Tumblr and Automattic, the maker of the popular WordPress publishing platform used by TIME and other news websites, filed a friend of the court brief supporting Lenz. As online service providers (OSPs), these companies are very familiar with copyright takedown notices. They are protected by the “safe harbor” provisions of the DMCA, which limits the liability of websites if they remove content when notified of possible copyright violations. According to the DMCA, safe harbor protection applies if an online service provider “responds expeditiously to remove, or disable access to, the material that is claimed to be infringing.”

In recent years, abusive and unfounded copyright takedown notices have spread like a virus, wasting human and financial resources that could be put to more productive uses. For example, in August, a member of the group “Straight Pride UK” sent a takedown request to Automattic in order to suppress an interview published by a journalist on a WordPress blog that the interview subject himself had authorized, simply because the article included the individual’s own embarrassing words revealing homophobia. Automattic has sued the individual for misrepresentation of copyright claims.

In another case, a self-styled “poet” sent repeated takedown notices to Google aiming to suppress criticism and commentary at the respected news websites TechDirt and BoingBoing (among dozens of other websites) relating to the poet’s bizarre and unfounded online copyright enforcement campaign. The particulars of the now-infamous “Shaun Shane/On Press” affair are too ridiculous to explore in detail here, but suffice it to say, Google refused to remove the posts at TechDirt and BoingBoing. (Read more about the episode here. EFF has also assembled what it calls the “Takedown Hall of Shame,” detailing how such bogus notices are increasingly being used against journalists.)

“The Lenz decision will be very important, because it will set the legal standard for how all future cases having to do with abuse of DMCA takedown notices are judged,” says Marvin Ammori, a First Amendment lawyer who specializes in technology and wrote the brief filed by Google, Twitter, Tumblr and Automattic. “This will be a key precedent for all the cases that are brought in the Ninth Circuit. That’s important because California is home to Hollywood and many of the largest entertainment companies.”

Numerous other examples of improper takedown notices sent to online service providers can be found in the brief filed by the companies. “Abusive and unfounded takedown notices interfere with an OSP’s business, can silence valuable free expression, and can constitute harassment of an OSP’s users,” the companies wrote. “Some DMCA notices are obviously and facially indefensible, sent not to protect valid copyright interests, but instead to silence lawful speech.” The companies added: “Processing these abusive takedowns diverts resources from the OSPs’ more productive activities and can result in delays in processing for legitimate, good-faith takedown notices.”

(MOREGoogle Books Vindicated by Federal Judge on Fair Use)

Congress anticipated bogus takedown notices when it passed the DMCA. That’s why lawmakers included language requiring that copyright holders who send takedown notice must have a “good faith belief” that the allegedly infringing material is not, in fact, authorized by law, including the “fair use” principle. Section 512(f) of the DMCA was “intended to deter knowingly false allegations to service providers in recognition that such misrepresentations are detrimental to rights holders, service providers, and Internet users.” The law provides that if a plaintiff prevails in a case about false copyright claims, he or she shall be entitled to “any damages, including costs and attorneys’ fees.”

But the deck is often stacked against the vast majority of Internet users, many of whom lack the time or financial resources to fight, or counter-notify, improper takedown requests. Some users are simply intimidated by the prospect of going to court, which requires a user to provide a real name, address, and telephone number, something that can be “problematic for anonymous bloggers and commenters engaged in critical political speech or whistleblowing,” the companies wrote. (Anonymous and pseudonymous political speech has a long and distinguished history in the United States.) “Not only can false takedown notices censor lawful speech, they can also lead to self-censorship in the future, discouraging critics who have already received such notices.”

Here’s where the case of Stephanie Lenz’s Prince-loving toddler Holden gets tricky. In refusing to grant summary judgement to either party and ruling that the matter could only be decided at trial, U.S. District Court Judge Jeremy Fogel concluded that liability for copyright misrepresentation relies on the “subjective,” rather than “objective,” intent of the copyright holder. Judge Fogel was relying on the precedent set by the 2004 case Rossi v. MPAA, in which the Ninth Circuit Court of Appeals ruled that “good faith belief” is a subjective standard. “A copyright owner cannot be liable simply because an unknowing mistake is made, even if the copyright owner acted unreasonably in making the mistake,” the court held in the Rossi case. “Rather, there must be a demonstration of some actual knowledge of misrepresentation on the part of the copyright owner.”

This is the crux of the argument presented by Google, Twitter, Tumblr and Automattic in their friend of the court brief: The companies are arguing that an “objective” standard can and must be applied when determining whether a copyright holder is acting in “good faith” when sending a takedown request. Take the example of the “Straight Pride UK” member who tried to suppress an interview in which he expressed homophobic views to a journalist, simply because he found the article embarrassing after the fact. “If ‘good faith’ encompassed a purely subjective standard, then it may be possible for a copyright-holder to escape liability even while conceding to having an objectively unreasonable view of the facts or law,” the companies wrote.

(MORENSA Spying Scandal Could Cost U.S. Tech Giants Billions)

In arguing that an “objective” standard should be applied when determining “good faith” on the part of a copyright holder that issues a bogus takedown order, Google, Twitter, Tumblr, and Automattic are trying to bolster the deterrent effect of the DMCA in discouraging such abusive practices. “Requiring copyright holders to form an objectively reasonable good faith belief prior to sending a DMCA takedown notice would not impose an undue burden on copyright holders,” the companies wrote (emphasis in original). “An objective standard would only require that the ‘good faith belief’ regarding a potential fair use be a reasonable one.”

In other words, the courts should use an “objectively reasonable” standard when determining whether a copyright holder is acting in good faith. (In layman’s terms it’s called common sense.) Lenz argues that Universal Music should have known that her 13-month-old’s 29-second “Let’s Go Crazy” YouTube video did not violate copyright law because it was creative, noncommercial, transformative and brief — key legal criteria for “fair use” — and did not harm the market for Prince’s 1984 number-one smash hit. (If anything, the video, which had 1,260,092 plays as of this weekend, probably boosted sales of the song.)

Technology moves faster than law and regulation. Again and again, lawmakers, regulators, and judges face thorny challenges to federal statutes and legal rulings governing the Internet and intellectual property rights. The fair use doctrine of copyright law is now well-established, but ambiguity over the liability borne by parties that file bogus infringement claims, allows — and even encourages — unscrupulous, careless, or simply lazy actors to unjustly stifle Internet users who post legal speech online.

Congress intended for the DMCA to include a serious deterrent to help prevent abuse of the copyright takedown notice regime established by the law. Bogus copyright takedown notices are increasingly being used against news organizations and independent journalists, in an ominous development that threatens free speech online and wastes resources that could be put to more productive use. Holden Lenz isn’t even ten-years-old, but his case could establish an important legal precedent that helps reduce abuse of the U.S. copyright system and bolsters free speech protections.

3 comments
jwblogs85
jwblogs85

“…in a case with important ramifications for copyright law and the nation’s largest Internet and entertainment companies." Whether the entertainment companies are the largest companies on the internet or not people also need to actively seek improvement for copyright claims. It’s inspirational that large companies are trying to make a difference especially in the case of the dancing baby and are vigorously trying to put out new ideas on how to curb copyright claims. “The companies are arguing that an “objective” standard can and must be applied when determining whether a copyright holder is acting in “good faith” when sending a takedown request.” However, videos or media made available should of course be within the guidelines of the law before being posted. This is part of the issue at hand. Laws on copyright are either not clear or are older without adequate consideration of how information is created and presented today. Thus a copyright revolution is needed with clear guidelines on what is truly fair use and what is not. Yet, at the current state we are having videos taken down or challenged because of either false accusations or a small tidbit of music in the background that can be barely heard. Copyright claims are rampant and are also on the rise, this can be seen by the vast news articles that have been circulating over the past few years. Copyright claims over content ID, music, video or other media should be addressed clearly and openly. Numerous people have concerns over the fast take down actions being dealt with their videos. Good (2013) posted, “Though Scale Lab says it has released all claims made on its behalf, it has been a mortifying experience, and for a day exposed the network to the anger and bewilderment that has roiled YouTube's video gaming community since a change in policy last week.” Whether it’s Google or the massive take down requests they receive on a daily basis something needs to change. Masnick (2012) reported, “The latest is that Google has put out a blog post noting that when they launched that report, they were receiving approximately 250,000 DMCA takedowns a week. Today, it's up to 2.5 million per week. That's in just six months.”

Laws that push copyright holders to have control over user submitted material without just cause should also be addressed. However, some believe that it’s a difference in culture and trying to exert control over material submitted more than it is about keeping their material safe. Campbell (2013) stated, “On a more prosaic note, it's also a clash of cultures between companies that are figuring out how much control they can usefully exercise over the content they create and those companies who cling to the belief that they have the last word over how their games are covered in the media.” Some people argue that they should be able to use anything that they find as long as they argue free speech. This is another issue that should be addressed with concern to copyright. CPIP (2013) wrote, “It is problematic enough that some individual Internet users mistakenly believe that free speech rights trump all other legal rights, but a number of companies are leveraging this erroneous meme into a business model. Websites and apps that profit from widespread copyright infringement are exhorting users to “express yourself” through a set of tools aimed at collecting and reusing materials from around the web.” Some of the issues with copyright can be seen more easily especially when it comes to educational purposes. Ess (2009) the author of Digital Media Ethics stated, “As a further example: U.S. copyright law is moderately clear with regard to what counts as “fair use” for teaching and research purposes – at least as far as printed materials are concerned. In particular, under most circumstances, it is illegal for me to make, say, photocopies of an entire book that I would then distribute to my students at the beginning of the semester for their use during the course. On the other hand, in general I am allowed to place original materials, such as articles or book chapters, on reserve for my students in the library ; they are then free to check out these materials and make copies of them – as part of their “fair use” of these materials as students.” (Location 1753) Copyright for the United States and Europe also have different laws on what should be deemed fair use when it comes to copyrighted material. Some cultures still believe in copying text books or other educational resources to show the utmost respect for the author; however, not all cultures or countries find this to be true. Ess (2009) found, “By contrast, European copyright law makes no equivalent provisions for “fair use.” On the other hand, in Thailand I received a now highly cherished gift from some graduate students: a nicely photocopied version of an important book in philosophy of technology, complete with a carefully crafted cover, on which the students inscribed their names. In U.S. circumstances, this could only be seen as a crass violation of copyright law, but, in the Thai context, this copying was seen to be a mark of respect both for the (famous and well-known) author of the text and for me as the recipient of the gift.”(Location 1753) I believe that it is up to all of us as citizens to push for new standards on fair use and also clearer guidelines when it comes to copyright.



John West

Undergraduate Student

Drury University

Colin, C. (2013, December 14). Everything you need to know about the YouTube copyright crisis and why you should care. Polygon. Retrieved February 6, 2014, from http://www.polygon.com/2013/12/14/5208782/everything-you-need-to-know-about-the-youtube-copyright-crisis

CPIP. (2013, November 21). The Internet Does Not Reset the Copyright-Free Speech Balance | CPIP. Retrieved from http://cpip.gmu.edu/2013/11/21/the-internet-does-not-reset-the-copyright-free-speech-balance/

Ess, C. (2009). Digital media ethics. Cambridge: Polity.

Good, O. (2013, December). YouTube Copyright Fiasco Get Wilder, But This Time Someone Admits Error. Kotaku. Retrieved February 6, 2014, from http://kotaku.com/mistake-zaps-youtubers-with-thousands-of-erroneous-co-1484535253

Masnick, M. (2012, December 12). DMCA Copyright Takedowns To Google Increased 10x In Just The Past Six Months | Techdirt. Techdirt. Retrieved February 6, 2014, from http://www.techdirt.com/articles/20121211/16152021352/dmca-copyright-takedowns-to-google-increased-10x-just-past-six-months.shtml

Links:

http://www.techdirt.com/articles/20121211/16152021352/dmca-copyright-takedowns-to-google-increased-10x-just-past-six-months.shtml

http://cpip.gmu.edu/2013/11/21/the-internet-does-not-reset-the-copyright-free-speech-balance/

http://kotaku.com/mistake-zaps-youtubers-with-thousands-of-erroneous-co-1484535253

http://www.polygon.com/2013/12/14/5208782/everything-you-need-to-know-about-the-youtube-copyright-crisis

jmaxgunn
jmaxgunn

So has there been a trial and, if so, what was the result? Or is the only question before the Ninth Circuit whether it is an objective or subjective standard? It's an appeals court so they're obviously not going to hold a trial themselves.

josephinehydehartley
josephinehydehartley

It's hard to tell what the music is because of all the noise, in this video.