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EFF To Ask Judge To Rule That Universal Abused the DMCA

Posted by Soulskill on from the lesson-in-responsibility dept.

xSander writes "The Electronic Frontier Foundation (EFF) will urge a federal judge in San Jose, CA to rule that Universal abused the DMCA to take down a video of a toddler dancing to a Prince song. The case in question, whose oral argument will be Tuesday, October 16, is Stephanie Lenz vs. Universal, a case that began back in 2007. Lenz shared a video on YouTube of her son dancing to 'Let's Go Crazy' on a stereo in the background. After Universal took the video down, Lenz filed a suit with help of the EFF to hold Universal accountable for taking down her fair use. The court had already decided that content owners must consider fair use before sending copyright takedown notices."

39 of 139 comments (clear)

  1. Meh by Anonymous Coward · · Score: 4, Interesting

    Where is the line between this "fair use" and using the song to promote your personal brand? I think this particular case is better dealt with socially by embarassing the shit out of universal for being such tools.

    I'd rather see them go after the automated systems that are sending DMCA notices for things that are clearly NOT their IP in any way shape or form.

    1. Re:Meh by fuzzyfuzzyfungus · · Score: 5, Insightful

      If you actually think of yourself as having a 'personal brand', I'd say that existing is all the punishment you could ever require...

    2. Re:Meh by drinkypoo · · Score: 4, Insightful

      Where is the line between this "fair use" and using the song to promote your personal brand?

      That's what I want to know.

      Capturing incidental background music should be always or never illegal. I vote for never but whatever. These arbitrary standards only postpone a meaningful reckoning. Reckon that's the point...

      --
      "You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
    3. Re:Meh by Anonymous Coward · · Score: 4, Insightful

      Where is the line between this "fair use" and using the song to promote your personal brand? I think this particular case is better dealt with socially by embarassing the shit out of universal for being such tools.

      I'd rather see them go after the automated systems that are sending DMCA notices for things that are clearly NOT their IP in any way shape or form.

      Embarrassment only works when the subject has a sense of shame.

    4. Re:Meh by Elbereth · · Score: 5, Insightful

      This whole problem could be resolved easily if the corporations had an automated system wherein people could license copyrighted works for use in personal, noncommercial videos (like YouTube). It wouldn't necessarily have to even cost any money, either. Simply collecting demographics would, I imagine, be valuable to the suits. If they wanted to be complete and utter assholes about it, they could charge 10 cents per license (or maybe have an unlimited subscription service for $5/month, so that you could use any of their hottest singles).

      As it stands, people have no way to ask for permission and thus resort to simply violating copyright. If they at least had the opportunity to follow the law, maybe there wouldn't be so much ill will toward the suits.

      This seems like quite a reasonable compromise to me.

    5. Re:Meh by Defenestrar · · Score: 4, Insightful

      I'd suggest a counter example to be duplicating a piece of art to hang on your own wall instead of buying one of the artist's prints. I'd personally view that as a non-commercial infringement which substantially violates a creator's right to pick their own business model.

    6. Re:Meh by Atzanteol · · Score: 2, Interesting

      I think most reasonable people would see that using a product to get people in the door to make money from something else is "commercial use."

      --
      "Ignorance more frequently begets confidence than does knowledge"

      - Charles Darwin
    7. Re:Meh by Tanman · · Score: 4, Insightful

      It sounds to me like you are describing extortion since these cases are already legal and not in violation of copyright law.

    8. Re:Meh by hazah · · Score: 4, Insightful

      That business model relies on law, not supply and demand, as such is broken to begin with. The violation is merely perceived, and is non-factual. But hey, why not have an inflated sense of entitlement. It's obviously serving humanity so well...

    9. Re:Meh by Charliemopps · · Score: 2, Insightful

      Fair use should be "I bought it, now I get to use it in any manner I damned well please"

      If I made a full blown music video using the song, according to the DMCA they'd have a right to take it down. If were waring Levi Jeans in that video, Levi wouldn't have any right to take it down. What the hell is the difference?

    10. Re:Meh by lordofthechia · · Score: 2

      Magnatune does this . So if you're a member, you are free to use their music in your non-commercial projects.

      This was the reason I took all the money from CDs I had abstained from buying from RIAA Members and instead got a lifetime subscription from Magnatune.

      --
      Georgia Tech, the leader in Chia(tm) technology.
    11. Re:Meh by JesseMcDonald · · Score: 3, Insightful

      which substantially violates a creator's right to pick their own business model

      There may be a right to pick your own business model, but there is no right which obligates anyone to make sure that business model succeeds. For example, my business model might be that I expect everyone else to pay me for the privilege of breathing. If so, I should expect that business model to fail. Other people breathing without my permission does not cause me any harm, so there is no legitimate basis for preventing it by force, and no one is going to voluntarily pay me for something they can do on their own for free.

      Like breathing, copyright infringement is an action which harms no one, and a business model predicated on expecting others to voluntarily pay you to make or share copies is just as obviously doomed to failure.

      --
      "The state is that great fiction by which everyone tries to live at the expense of everyone else." - Bastiat
    12. Re:Meh by Shagg · · Score: 2

      The difference is that the RIAA has spent a lot more money bribing politicians than Levi has.

      --
      Unix is user friendly, it's just selective about who its friends are.
    13. Re:Meh by Technician · · Score: 3, Interesting

      Would playing a stereo too loud in a public place be a copyright violation for making available? Maybe they can use this to outlaw loud car stereos and mandate the use of headphones in cars.

      --
      The truth shall set you free!
    14. Re:Meh by Anonymous Coward · · Score: 2, Funny

      Mine is KY...

    15. Re:Meh by Sentrion · · Score: 3, Funny

      My business model is similar to breathing, but I don't control what other people choose to breathe. But when they walk by my store and breathe in the aroma of my scented candles and then walk away without paying, how fair is that? People should not expect the government to just hand out entitlements like healthcare, housing, food stamps, disability and SSI, but we do need a system of entitlements for those of us who actually pay taxes to protect our rackets. We have patents, copyrights, and contracts, but that is not enough. It's about time for government to protect our aroma property rights as well. Who's with me?

    16. Re:Meh by Mathinker · · Score: 2

      Your counter example sounds good, until you start talking with professional artists (painters --- photographers seem to have a different business model) and realize that they mainly make money from people who are only interested in having original/authentic works (partially as an investment). Since the value of a widely-copied original work is only increased by the copying/popularity (assuming the copier for personal use is copying rather than forging), your example is actually totally wrong (for paintings).

  2. I'm still not clear on how such takedowns... by BMOC · · Score: 2

    do not constitute prior-restraint when it comes to free speech. Is it because the government isn't doing the takedown?

    --
    I swear they give me mod points to shut me up.
    1. Re:I'm still not clear on how such takedowns... by Nidi62 · · Score: 5, Insightful

      I think the idea is that the DMCA is supposedly only invoked in good faith, and that it would only be used in cases where their is a clear copyright violation. If this were the case, then I think most people would consider the DMCA a relatively fair and benign method of copyright protection. The problem is that it is not being used in good faith. Rather, it is being thrown at virtually everything to see what it sticks on, and it's so sticky it sticks to everything. So, to answer your question, I don't think it was intended (except, of course, by it's industry backers) to be used this way.

      --
      The only thing necessary for evil to triumph is for it to be pitted against a slightly greater evil
    2. Re:I'm still not clear on how such takedowns... by MickyTheIdiot · · Score: 4, Interesting

      As it is often pointed out here, by clear case law corporations are supposed to get the most for their stockholders. They're basically mandated by caselaw to push the envelope. Therefore you can't trust corporations to do the right thing... ever. Any law that expects a corporation to work in good faith is flawed. The only way you can call them on it is to take them to court, then it turns out to be the usual "my lawyer is bigger than your lawyer" crap.

      They shouldn't have the power to take something down on their own say so. It's a violation of both due process and free speech. But, heh, they can afford a better lawyer than I can. That's america.

    3. Re:I'm still not clear on how such takedowns... by Anonymous Coward · · Score: 3, Insightful

      Always blaming shareholders is silly, and they are not "mandated by caselaw to push the envelope," any more than a dictator is mandated by natural law to kill any and all resistance. Why don't we just say that those particular people are dirtbags, and not diffuse the blame because "they are forced to do so."

    4. Re:I'm still not clear on how such takedowns... by sumdumass · · Score: 2

      The DMCA is not intended as a method of copyright protection, it is intended as a tool to facilitate the right holder's claims against something copyrighted while offering protections for the service provider or network carrier from becoming liable in the process.

      The DMCA has been widely abused in this regard and it is on the surface or in appearance, a method of enforcing a copyright. However, it was supposed to only be a shelter for innocent third parties from liability while a copyright owner and accused infringing party hammered and battled it out. The fact that it is being thrown at virtually everything to see what it sticks on, and it's so sticky it sticks to everything- sort of shows the abuse that has been taken with it.

    5. Re:I'm still not clear on how such takedowns... by tnk1 · · Score: 4, Informative

      In short, yes:

      From the abstract of "Free Speech Unmoored in Copyright’s Safe Harbor: Chilling Effects of the DMCA on the First Amendment" by Wendy Seltzer
      http://jolt.law.harvard.edu/articles/pdf/v24/24HarvJLTech171.pdf

      If this takedown procedure took place through the courts, it would trigger First Amendment scrutiny as a prior restraint, silencing speech before an adjudication of lawfulness. Because DMCA takedowns are privately administered through ISPs, however, they have not received such constitutional scrutiny, despite their high risk of error.

      The actual article argues that although the takedown notices are carried out by private entities, they are being done "in the shadow of the law". However, until a court accepts this, prior restraint does not apply.

    6. Re:I'm still not clear on how such takedowns... by Artifakt · · Score: 4, Informative

      Glad to see somebody trying to set the record straight. Corporations are not required to take any steps that, in their management's judgement, might be contrary to law. There are several areas of law where the exact opposite is the case. (Just try to claim in a U.S. court, that your corporation was compelled to bribe local officials in a non U.S. locale because "it's the way that culture works" and you would have been remiss to not use bribery to maximise shareholder value. You'll find out that there are international treaties supporting the U.S. penalizing your corp for something it did off of US soil.). In addition, it's usually possible for a board to 'beat the rap' by simply claiming they were avoiding negative publicity for such actions, i..e. by claiming they feared triggering a boycott movement.

      The problem starts when somebody finds out that shareholders have sued because a board of directors 'failed to maximise value'. The correct way to look at that is that somebody has sued NASA because a kid on a playground broke their window with a baseball. Just because somebody files a lawsuit doesn't mean it is at all reasonable nor that they have any chance of winning. Somebody might sue you for breathing their air, now do you go through life using that to justify your every action? There have been a few reasonable claims that a board was failing in its duties, but many more unreasonable ones, and the chance anyone will win a suit against a board of directors over shareholder value is pretty slim overall.

      Here's the sort of situation where a shareholder value claim can win: The board appears to be taking steps that are generally devaluing the company, or at least making it perform at far under anticipated projections. Judicial review shows these steps may have helped another company profit, and part of the board consists of members who have some sort of 'less than arms length' relation with that company.

      --
      Who is John Cabal?
    7. Re:I'm still not clear on how such takedowns... by MozeeToby · · Score: 4, Informative

      No, they are bound by case law to work towards fulfilling the goals that were laid out to their shareholders. Those goals are very, very rarely "make as much money as possible". They range from "maximize shareholder value" (which isn't the same thing as maximizing short term profit) to "uphold traditional christian values". No one ever said that selling stock of your company meant you had to run said company like a sociopath.

  3. Who Owns Your Memories? by srobert · · Score: 4, Funny

    Universal?. Hmm. Most all of my childhood memories are owned by Disney and Time-Warner.

  4. I'd like to see more of this by v1 · · Score: 5, Insightful

    We need more of these trigger-happy infringement notice filers to be held accountable. I get the impression that at this point they feel they can do no wrong, and will just fire off a takedown notice with no thought to the consequences. They need to learn that we won't stand for their abuse of the system.

    Applying some of the teeth in the anti-abuse clause in the DMCA is the only way to change their attitude. These groups won't stop abusing the system until it starts affecting their bottom line.

    (of all the things I've seen the EFF do lately, this is the one that I appreciate the most)

    --
    I work for the Department of Redundancy Department.
    1. Re:I'd like to see more of this by ender8282 · · Score: 5, Funny

      Oooh, Oooh how about 3 strikes. The media companies love it so much; what if they got 3 strikes? If they issue 3 DMCA take down requests that get overturned as failing to consider fair use, they loose the right to issue take down requests.

      I predict that a fraction of a second after such a law took affect most companies' bots would issue bad requests. A few months later the courts would rule that 3 of them were in valid, and all of big name rights owners would loose the right to issue take down notices. Then the word becomes a better place and I can watch the Curiosity landing!

  5. Re:EFF is stretching it by aglider · · Score: 2

    People really need to start taking responsibility for their own actions and stop using children and the "awww, cmon...." mentality as defense for their lack of judgement

    Awww ... Cmon!

    --
    Sent as ripples into the electromagnetic field. No single photon has been harmed in the process.
  6. Re:EFF is stretching it by the+eric+conspiracy · · Score: 2

    "de minimis non curat lex"

  7. Re:Unbelievable! by cpghost · · Score: 4, Informative

    You must not be living in Germany then, since you didn't experience GEMA's talibanesque crusade against "public performance of music." At least in the US, they have Fair Use provisions. Europe doesn't have them, AFAIK. In a sense, copyright-wise, European legislation is even worse than the dismal US copyright legislation.

    --
    cpghost at Cordula's Web.
  8. Re:Good by Impy+the+Impiuos+Imp · · Score: 2

    Don't forget to pay Cee Lo.

    --
    (-1: Post disagrees with my already-settled worldview) is not a valid mod option.
  9. Re:EFF is stretching it by MickyTheIdiot · · Score: 4, Insightful

    But what harm came to the copyright holder? At worst it was $0. It might be negative harm since someone might have seen it and went and bought a prince album. Maybe it could of used the YouTube model and provide a link to buy the music.

    Sorry... it's asinine. It's using the copyright law as a sword instead of a shield. If you care about a tight interpretation of the Constitution it's pretty obvious that copyright is well beyond its stated intent. It's funny how strict constitutionalists change their tune when their corporate buddies are involved.

  10. Re:Must by tnk1 · · Score: 2

    The law reads this way:

    http://www.gpo.gov/fdsys/pkg/PLAW-105publ304/pdf/PLAW-105publ304.pdf

    PUBLIC LAW 105–304—OCT. 28, 1998
    DIGITAL MILLENNIUM COPYRIGHT ACT

    [cut]

    ‘‘(f ) MISREPRESENTATIONS.—Any person who knowingly materially misrepresents under this section—

    ‘‘(1) that material or activity is infringing, or
    ‘‘(2) that material or activity was removed or disabled by mistake or misidentification,

    shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

    TL;DR what are the consequences? Civil damages. And probably not much of them.

    Not being a lawyer, I am not sure if the language allows for punitive damages, as opposed to simple recovery of lost fees and expected income lost by removing the item due to a misrepresented takedown notice. Either way, it's not a criminal offense.

    So, my reading is that you can sue for damages and fees if someone misrepresents the material as infringing, although it does have to be "knowingly" and "materially". That still shouldn't excuse robo-notices, but determination of fair use is something a court would do, so the copyright owner could probably argue that since they do not determine what fair use is, they didn't knowingly misrepresent that it wasn't. All they did was call the allegedly infringing material to the attention of the provider and subscriber, who then has the right under the law for a counter notification which would include addressing fair use considerations.

    Once the notifications clash, they can work it out or go to court to determine fair use. Even if the fair use is upheld, the copyright holder might have been held to be legitimately mistaken and not "knowingly" misrepresenting it's position, which means no damages would be assessed for misrepresentation under that heading.

  11. Re:Unbelievable! by Eyeball97 · · Score: 3, Insightful

    You're forgetting the insanity in the UK, this stupidity has been going on for years, a lot longer than people realise. Take Kwik Fit (UK vehicle maintenance franchise) for example...

    http://arstechnica.com/tech-policy/2007/10/the-next-copycrime-making-hearable-rings-up-200000-copyright-suit/

    I was bemused as a kid, when they started all this shit. "Home taping is killing music". My arse. Yeah, I'm sure *I* killed the Bay City Rollers because I put them on a mixtape for my gf. Or mmmh, dontcha think maybe they just went out of fashion?

    Now, decades later the whine is louder than ever. Sad.

  12. Read the Law by pavon · · Score: 3, Informative

    None of the things you mentioned are criteria for determining whether something is fair use. They are examples given in the law, and were never intended to be an exhaustive enumeration of instances of fair use:

    ... the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

    The real criteria for fair use follows that introductory paragraph:

    In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
    (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    (2) the nature of the copyrighted work;
    (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    (4) the effect of the use upon the potential market for or value of the copyrighted work.

    This video easily passes those criteria.

  13. Re:EFF is stretching it by erroneus · · Score: 2

    Nice one. And well put. That's a really fancy way of saying "awww, cmon..."

  14. Re:EFF is stretching it by war4peace · · Score: 3, Interesting

    Here's an interesting counterexample very fresh in my memory.
    Two days ago I watched the "Cat watches Slayer" video posted on wimp.com (http://www.wimp.com/watchingslayer/). I remembered how much I loved Slayer when I was 16-18 and all I could find was a couple of cassette tapes which I couldn't play anymore (yeah, I got rid of my cassette player) so I immediately went and bought their albums online. Yes, all of them, because I could afford this one purchase.
    So, paradoxically, a video of a cat watching Slayer boosted some Slayer sales. Go figure.

    --
    ...gis sdrawkcab (usually not responding to ACs; don't bother posting as AC)
  15. Re:Basic math for Jehova's Witnesses' star member by Zontar_Thing_From_Ve · · Score: 2

    I agree with what I presume is your assertion that some of this may be coming from Prince himself. What's weird is that if we went back in time to about 10 years ago, he was thrilled about the internet. I remember hm saying that he sold fewer recordings, but he made a lot more money because he kept 100% of the money from sales instead of most of it going to a label. Then something changed and he became arguably the most anti-internet of major recording artists, going back to the Darth Vader embrace of a major label. I don't really keep up, but one of my longtime friends is a huge fan of Prince and I remember some years ago that he was complaining about how Prince was treating his fans. If I remember correctly, Prince had a site where fans could pay for access and I think the story was that the price to get access kept rising and you started to get less and less for the money. I've seen people who own commercial properties who think that their tenants can't or won't leave and will have no choice but to pay any price to stay. That often is wrong. Maybe Prince just got greedy and thought he could keep jacking up access costs and offering less and less and his hard core fans would still pay it.