Yet in order for me to take action against Google, I have to perform a “fair use test.”  Quick show of hands.  How many of you can state the 4 pillars of fair use and how to properly perform the balancing test required by courts?   No one?  That’s what I thought.

Further since fair use is a creature of jurisprudence, that is, the rules that interpret fair use are contained in previous rulings.  Without a legal education how do I know where to find and interpret these decisions?   Then does the method of interpretation vary depending on which federal circuit in which I live?   Do I use those circuit court opinions for the district in which I reside?  Or do I use the circuit court opinions  that  apply to the district in which the corporation or user is based.  I almost never know in which district the YouTube user lives. Or if they are even based in the US.   Many websites obscure their geo location.  So according to the Lenz decision I’m not even able to start a proper fair use analysis.

Read the Trial by Kafka sometime.

This is simply a hurdle that the courts have thrown up to benefit YouTube while depriving millions of authors of their legal rights under US law and Human Rights under the Universal Declaration of Human Rights.

It’s no wonder so many americans have lost faith in the our government.

Here is what I filed to the US Copyright office consultation on the flawed “Notice and Takedown” system as interpreted by the US courts.   Someone really needs to challenge this in the Supreme Court.

 

Jacqueline C. Charlesworth
General Counsel and Associate Register of Copyrights

United States Copyright Office

Washington, D.C. 20559-6000

Re: Section 512 Study [Docket 2015-7]

 

Dear General Counsel Charlesworth:

 

My name is David Lowery. I am a founding member of the groups Cracker and Camper Van Beethoven and a lecturer at the Terry School of Business at the University of Georgia at Athens. Many of the albums my two bands have recorded over the years have been released on my own label. I also write The Trichordist blog devoted to issues of importance to independent artists and songwriters. I am filing this comment on my own behalf from the perspective of an independent recording artist.

Thank you for the opportunity to comment on Section 512, the “notice and takedown” process. I would argue that it has become patently obvious that what started with the Congress as “notice and takedown” is better described as “notice and shakedown”. As Beggars Group Chairman Martin Mills said in his Canadian Music Week keynote a couple years ago:

 

The original intent was to protect reasonable people acting reasonably from falling foul of the law, to enable the digital economy to grow without “ gotcha “ law suits against ISPs who had no idea that their networks were being used for infringement. They were not intended to provide fortress walls behind which companies could build billion dollar businesses on content that had not been cleared. They were never intended to become a de facto “ license “.
To draw an offline analogy, these provisions would allow someone to burgle your house and remove its contents, with their only risk being that if you caught them, they’d have to return them – and maybe apologize. And then do it again. And again. And again.

 

Nowhere is Mr. Mills’ point made more clearly than in the BMG Music Rights v. Cox Communications case[1] where Judge Liam O’Grady denied the safe harbor to an ISP that had blatantly failed to comply with the repeat infringer policies required by the statute.

 

Anyone who has a passing acquaintance with reality knows that Judge O’Grady’s ruling is both courageous and fundamental—what BMG proved was that Cox handled DMCA notices in a cavalier fashion in a prime example of what Mr. Mills called the “de facto license” or as some call it a “DMCA license” that neither complies with the Copyright Act nor is a license. But it may as well be, particularly if like most independent artists you can’t afford to file a lawsuit and use the force of law to extract the proof that everyone knows is there.

 

And this is what I would like to draw to the Copyright Office’s attention. The notice and takedown process was intended to be a low cost way for creators of all copyright categories large and small to enforce their rights. Instead, it has become a battleground between big tech companies and their surrogates (like the Electronic Frontier Foundation that received over $1 million from Google[2]) getting rushed by an overwhelming number of infringers with the artists the statute was intended to protect being pushed aside.

 

The is no better way to illuminate this story than to refer you to the bizarre ruling in Lenz v. Universal Music Corp.,[3] a case that appears to have been largely bankrolled by the Electronic Frontier Foundation in furtherance of its obsessive hostility toward Universal[4] with utter disregard for the lives of artists left in its wake.

 

As if it is not enough that YouTube is promoting to the general public that it will directly bankroll litigation over “fair use”, the federal courts have interpreted the DMCA to require that the artist sending a takedown notice “consider” fair use before sending their notice:

The panel held that the DCMA requires copyright holders to consider fair use before sending a takedown notification, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law. Regarding good faith belief, the panel held that the plaintiff could proceed under an actual knowledge theory. The panel held that the willful blindness doctrine may be used to determine whether a copyright holder knowingly materially misrepresented that it held a good faith belief that the offending activity was not a fair use.

The Court goes on to an extremely technical discussion of the difference between an affirmative defense and a plain old defense:

Regardless of how fair use is viewed, it is clear that the burden of proving fair use is always on the putative infringer….Fair use is therefore distinct from affirmative defenses where a use infringes a copyright, but there is no liability due to a valid excuse, e.g., misuse of a copyright.

And then the Court held this:

To be clear, if a copyright holder ignores or neglects our unequivocal holding that it must consider fair use before sending a takedown notification, it is liable for damages under § 512(f). If, however, a copyright holder forms a subjective good faith belief the allegedly infringing material does not constitute fair use, we are in no position to dispute the copyright holder’s belief even if we would have reached the opposite conclusion…. In order to comply with the strictures of § 512(c)(3)(A)(v), a copyright holder’s consideration of fair use need not be searching or intensive….We are mindful of the pressing crush of voluminous infringing content that copyright holders face in a digital age. But that does not excuse a failure to comply with the procedures outlined by Congress.

I really have only a hunch as to what the Court is requiring of me, but what does seem clear is that I need to hire a lawyer before I file a DMCA notice or run the risk that even if I’m right, I’m wrong because I may have known that I didn’t know what I might have known if I’d “considered” it longer. I will either be taken down by the known unknowns or the unknown unknowns that I should have known but couldn’t afford to hire a lawyer to tell me I didn’t know them.

In reading the opinion of the Court, it is obvious to me that the Court has no idea of the import of its decision for independent artists, photographers, authors, scrapbookers and all of us who are not able to have our copyrights enforced by corporations on our behalf. The court has essentially created a legal literacy test! This stands in stark contrast to the intentions of Congress. The Congress pretty clearly intended to have the notice and takedown process be an inexpensive remedy for all kinds of copyright owners to enforce their rights.

On the one hand the Court acknowledges the burden placed on us by companies like YouTube, but on the other hand exponentially increases that burden by essentially requiring all of us to get a legal opinion on fair use (which is either an affirmative defense, a regular defense, or a right) before we send a takedown notice.

This bizarre reading of the Copyright Act further enshrines the “notice and shakedown” DMCA “license” best described by YouTube founder Steve Chen in one of the few internal YouTube emails that Viacom was able to recover in its long-running litigation against Google as reported by USA Today:

Viacom says Chen discussed in another instance how YouTube could handle a hot news clip from CNN: “[I] really don’t see what will happen. what? someone from cnn sees it? he happens to be someone with power? he happens to want to take it down right away. he gets in touch with cnn legal. 2 weeks later, we get a cease & desist [takedown] letter. we take the video down.”[5]

If the Congress really did intend for everyone sending a takedown notice to have it vetted by a lawyer to see if, in that lawyer’s opinion (and good luck getting that in writing), the infringer might be able to successfully argue fair use at some point in the theoretical future in a theoretical lawsuit at which point—if it ever comes to pass—the infringement wouldn’t be an infringement because it would have been legally proven to be fair use which means there should never have been a takedown notice in the first place–then what’s the point of having notice and takedown in the first place?

Because what that really means is that YouTube gets to keep driving traffic to its website and “monetizing” user-generated content under this tortured interpretation of the safe harbors. Respectfully, if that’s what the Congress really intended, then why don’t they just say outright that multinational tech companies and their surrogates always win and suck it up?

I don’t think that’s what the Congress intended, but I can’t afford the million dollars in legal fees to prove it. Maybe you can.

I appreciate the opportunity to express my views on the safe harbors and appreciate the Copyright Office’s dedication to trying to get this right.

Sincerely,

 

David C. Lowery

[1] BMG Rights Management (US) LLC V. Cox Communications, Inc., Civil No. 1:14-cv-1611 (U.S.D.C. E. Dist. Va)

[2] Roger Parloff, “Google and Facebook’s new tactic in the tech wars”, Fortune (July 30, 2012) available at http://fortune.com/2012/07/30/google-and-facebooks-new-tactic-in-the-tech-wars/

[3] Lenz v. Universal Music Corp. et al, Civil 5:07-cv-03783-JF Order and Amended Opinion (9^th Cir.) (March 17, 2016).

[4] “The first topic on which Lenz waived privilege had to do with her and EFF’s motives for pursuing the case. She emailed a friend that EFF was “very, very interested in the case” and was “salivating over getting their teeth into [Universal] yet again.” She also emailed her mother to explain that she ‘couldn’t say much,” but EFF was planning a “publicity blitz and/or a lawsuit against Universal.’” “The Walls Have e-Ears”, Foley & Lardner Intelligence Blog (May 19, 2011) available at https://www.foley.com/the-walls-have-e-ears-05-19-2011/

[5] “The Juicy Details Behind the Viacom-YouTube Lawsuit”, USA Today, available at http://archive.wusa9.com/news/article/98844/189/the-juicy-details-behind-the-viacom-youtube-lawsuit