Archive for September, 2015

The Danger of the Lenz Ruling

Monday, September 14th, 2015

This morning the Ninth Circuit entered its opinion in the “Dancing Baby” case, Lenz v Universal Music. Although it could have been worse, the ruling is a major blow to copyright holders, particularly the individual/independent artist ones.

In short and in lay terms,  the court held that before one sends a DMCA Takedown Notice, one must take a good faith look as to whether the potentially infringing use is actually Fair Use. Fair Use, the court reasoned, is (by statute) not an infringement and so it would be improper for a copyright holder to send a Takedown Notice in that case.

The good part about this ruling is that the court said that the standard is subjective–that is that a copyright holder must subjectively believe that he/she looked at the use and honestly didn’t believe that Fair Use applied. The EFF (remember, that org is no friend to creatives) and others wanted the court to make the standard objective, which would be a higher burden for any copyright owner.

Sadly, that about does it for the good parts of the ruling. The bad parts in this ruling are several and they are doozies.

First, the court cited an Eleventh Circuit ruling that said, because of how the statute is written “…it is logical to view Fair Use as a right.” That is a scary shift. Traditionally, Fair Use has been seen as an affirmative defense, which is quite something different than a right. In fact, the court here even cites the Supreme Court in Campbell v Acuff-Rose Music where it said, plainly, “fair use is an affirmative defense…” (see Lenz pages 14-15). For those of us who both practically and academically follow these issues, the Ninth’s logic seems, at best, flawed.

Already the anti-strong copyright people are singing “Fair Use is a Right” like “Ding Dong, The Witch Is Dead!” With the support of enormous pockets like those of Google and the EFF, that idea that it’s a right will be the new reality even if it isn’t accurate in the long run.

Anyway, second, this ruling is bad because of how the DMCA Takedown Notice system works in the first place. Imagine a copyright owner (Bette) finds what she believes to be an infringing use of her work on, say, YouTube. YouTube is a third party ISP–that is, it hosts the work but doesn’t control what is posted to its service (note, I’m writing this post in basic terms rather than getting all lawyer-y so for the legal nerds out there, take a breath). YouTube has a Designated Agent for DMCA claims and has otherwise complied with the statutory requirements for protection under the safe harbor provisions of the DMCA. So, Bette thinks it’s an infringement and sends a proper DMCA Takedown Notice to YouTube, who takes the work down. The poster of the alleged infringement (Bob) thinks the use is Fair Use and submits a counter-notice. YouTube informs Bette of this and now she has to either file suit against Bob or YouTube can restore the material to its site. All that is as it was before this ruling.

Now, however, even before Bette can file suit (or as a counterclaim to her suit if she does), Bob sues Bette for an improper DMCA Takedown Notice because she, in his mind, didn’t consider Fair Use in good faith before submitting her notice. Under today’s ruling, if the court agrees that she didn’t check to see if maybe it was Fair Use, then Bob wins.

Yes, you read that right, even if Bob’s use turns out NOT to be Fair Use, even if it was in fact an infringement, if Bob can prove that Bette didn’t in good faith consider the Fair Use possibility, he wins on his claim that she submitted an improper Takedown Notice (not on the infringement claim, that’s her claim). What can Bob win? Quoting from today’s opinion (page 22):

Section 512(f) provides for the recovery of “any damages, including costs and attorneys[’] fees, incurred by the alleged infringer . . . 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 . . . .” 17 U.S.C. § 512(f). We hold a plaintiff may seek recovery of nominal damages for an injury incurred as a result of a § 512(f) misrepresentation.

In other words the infringer can get damages for lost revenue for the time the work was “improperly” taken down and, worse, attorneys’ fees and costs. Ouch.

So what can copyright holders do to protect themselves? Before sending a DMCA Takedown Notice, make sure to give the infringement an impartial review for the Fair Use potential and to document doing so somehow. This presents not only a proof issue (how do you document your good faith effort to check for Fair Use?) but also how do you actually check for Fair Use when courts themselves can’t even define it clearly? Here is where the good news part of this ruling comes in: you don’t have to be right in your analysis of whether or not it is Fair Use, you just have to make a good faith effort to consider it.

In my opinion, the possibility of being sued or countersued for an improper notice will chill copyright holders from submitting legitimate takedown notices. Especially the little gals/guys, who don’t have the resources to defend against these claims, will get spooked. More infringements will go unchallenged because artists will be too scared to risk the penalties of an improper notice action. And who can blame them?

Has it been done before?

Thursday, September 10th, 2015

I rather love this idea: a camera that won’t let you take a photo where everyone and its mother already has.

Now, some of you may be freaking out about that idea but read the whole piece. The creator means it to be a tool to point out how photography has become so overdone, particularly in some famous places, that maybe you don’t need to make that particular photo. Think about it first. Are you bringing something new to the image?

I tell photographers this often when I’m wearing my consultant hat: don’t be subject-and-too-driven. With photo technology today, anyone can make a good image of a beautiful woman or a magnificent landscape; a pro needs to bring that elusive “something more” to the work.

This is another reason to shoot film at least occasionally–it changes how you approach shooting (even after you go back to digital). Shooting film slows you down and makes you more aware of your process, your vision. If you have a limited number of exposures, you must think before hitting the button. Do you have it? Is it worth exposing the film yet? Has it been done before?

Today, professional photographers who rely on what they are shooting, both the subjects and the technical whizbangery of the tools, are going to struggle. Clients can get anyone to shoot that way. You need to bring something that never fits in your gear bags–a unique vision.

Your answer to Has it been done before? has to be Not like this.