Takedowns or shakedowns?
With the infamous Dancing Baby litigation still to be decided at the US Supreme Court, third parties and observers have shared their views

The infamous ‘Dancing Baby’ case will be heard at the US Supreme Court next year. Justices will aim to clarify whether, before sending a Digital Millennium Copyright Act (DMCA) takedown notice, rights holders must make a reasonable determination that the targeted material is not authorised by the owner, its agent or the law.

The dispute arose in 2007 when Stephanie Lenz posted a video of her son dancing to Prince’s Let’s Go Crazy to YouTube. Universal Music Corp (UMC) took issue with this video and sent a notice to YouTube under the DMCA, claiming Lenz had committed copyright infringement.

Lenz said she was “surprised and angry” when she learned her video had been removed from YouTube in February 2007.

“UMC should not be using legal threats to try to prevent people from sharing home videos of their kids with family and friends.”

The case drew the attention of the Electronic Frontier Foundation (EFF), which sued UMC on behalf of Lenz, arguing that it had improperly used the DMCA and abused the takedown system.

The EFF said that this was a violation of both the “fair use and free speech rights of a mother”, and that Lenz didn’t upload the video for any reason other than to share a video of her child with her family and friends.

Marcia Hoffman, staff attorney at the EFF, commented in May 2007 after a similar case where UMC sent a copyright takedown demand to YouTube for a video by political blogger Michelle Malkin.

Hoffman said: “Copyright abuse can shut down online artists political analysts or—as in this case—ordinary families who simply want to share snippets of their day-to-day lives.”

“UMC must stop making groundless infringement claims that trample on fair use and free speech.”

When the US Court of Appeals for the Ninth Circuit sided with Lenz last year, ruling that copyright holders must consider fair use before filing a DMCA request, Corynne McSherry, legal director of EFF, said the ruling “sent a strong message that copyright law does not authorise censorship of lawful speech”.

“The decision made by the appeals court today has ramifications far beyond Lenz’s rights to share her video with family and friends.”

But the Ninth Circuit gave UMC some leeway in its ruling, stating that senders of false infringement notices could be excused so long as they subjectively believe the material they targeted was infringing.

For the EFF, this was not enough of a step in the right direction.

Almost a year after the ruling by the Ninth Circuit in September 2015, the EFF and McSherry brought the case to the Supreme Court in August 2016.

McSherry said: “If left standing, the Ninth Circuit’s ruling gives fair users little real protection against private censorship through abuse of the DMCA process.”

“Rights holders who force down videos and other online content for alleged infringement—based on nothing more than an unreasonable hunch, or subjective criteria they simply made up—must be held accountable.”

The EFF petitioned the Supreme Court to “ensure that copyright holders who make unreasonable infringement claims can be held accountable if those claims force lawful speech offline”.

Further, it asked whether: “The Ninth Circuit erred in concluding that the affirmation of good faith belief that a given use of material use is not authorised ‘by the copyright owner, its agent, or the law’ ... may be purely subjective and, therefore, that an unreasonable belief will not subject the sender of a takedown notice to liability under Section 512 of the DMCA.”

Amici curiae lined up to have their opinions heard, with joint briefs from the Organization for Transformative Works and Public Knowledge, and as well as Automattic, Google, Twitter and Tumblr.

In their joint brief, the Organization for Transformative Works and Public Knowledge said that the question proposed to Supreme Court is “as much about free speech as any of the seminal free speech cases that have reached the court before”.

“Because the Ninth Circuit’s decision leads to a result inconsistent with this court’s prior First Amendment holdings, review here is warranted. Copyright law must always be drawn within the bounds that the First Amendment permits.”

Further, they said: “In enacting of the DMCA, Congress sought to comply with these limitations through several speech-protecting provisions ... These provisions mitigate the powerful effects of the DMCA, which essentially grant copyright owners an immediate injunction removing challenged content without any need for independent judicial review.”

But the two organisations argued that the First Amendment requires far more than abstract safeguards for free speech—it needs the safeguards to have practical effects.

“This case illustrates how lawful speech is now vulnerable to the unchecked censorship that system enables, allowing a form of prior restraint that ordinarily would be anathema to the First Amendment.”

Automattic’s joint brief touched on similar grounds, arguing that “unfounded and abusive takedown notices inflict real harm to online service providers, internet users, and copyright holders”.

“Every time an unfounded takedown notice results in the removal of legitimate, non-infringing content posted by a user, it constitutes unjustified censorship of the user’s speech and interferes with the online service provider’s business of hosting and disseminating that speech.”

It added: “Most DMCA notices are valid, well-founded, and sent in good faith. But some DMCA notices are obviously and facially indefensible, sent not to protect valid copyright interests, but instead to silence lawful speech.”

“The Ninth Circuit’s view—that a copyright holder need only form a purely subjective good-faith belief that a given use is not authorised by law before sending a takedown notice—is untenable.”

UMC originally filed its own petition to the Supreme Court, asking whether Lenz should have been entitled to damages despite suffering no injury as a result of the takedown.

That petition was denied, but trade group the Recording Industry Association of America (RIAA) filed its own brief in support of UMC in response to Lenz’s case.

The RIAA argued that the Ninth Circuit had “engaged in a sweeping reinterpretation of the DMCA that significantly undermines the ability of copyright holders to protect intellectual property from infringement online, thus defeating a major purpose of that statute”.

“The RIAA writes in support of UMC’s petition to underscore how destructive the Ninth Circuit’s ruling will be to the protection of American intellectual property, if allowed to stand.”

This claim, however, didn’t emphasise how or why the Ninth Circuit ruling will prove destructive.

Speaking ahead of oral hearings in the case at the Supreme Court, McSherry argues against this.

She says: “Our case doesn’t strengthen or weaken copyright—it simply clarifies the obligations of owners who take advantage of the DMCA’s easy extra-judicial takedown process.”

The case’s escalation has been steady, and with input to expected from the US government ahead of oral hearings next year, it’s unclear which way the Supreme Court will swing. The DMCA, despite passing into law in 1998, is still proving controversial almost two decades later.

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