Copyhype

Check out this amazing video:

[youtube]http://www.youtube.com/watch?v=N1KfJHFWlhQ[/youtube]

Impressive, right? I mean, it’s no “Star Wars according to a 3 year old” ¹Or “kittens inspired by kittens“. , but if you check out the stats, you’ll see it has gotten over one million views. Why all the fuss?

Lenz v. Universal Music Group

Stephanie Lenz, the mother of the child in the video, uploaded the clip to YouTube in February 2007. Several months later, Universal Music Group (UMG) sent a flurry of DMCA notices to YouTube requiring the site to remove videos that included unauthorized uses of Prince songs, including Lenz’s video (Prince’s “Let’s Go Crazy” was playing on the radio and caught by Lenz while she filmed). Lenz responded to the notice with a counter-notice to request the video be put back online. YouTube restored the video. Then, Lenz sued UMG for sending the original DMCA notice, claiming that it was sent in bad faith.

Lenz became somewhat of an internet folk hero: the innocent mother who just wanted to show her dancing baby to the world standing up to the big, bad music conglomerates. In the comments, Lenz is called a “hero” and a “legend,” while Prince is called a “scum bag,” a “miser”, and a “selfish, cold-hearted, insensitive, bitter and ugly jerk.” I can’t tell what UMG and the RIAA are called, since most of those names are censored.

But the story’s popularity has gone beyond YouTube and made it into academic literature. A HeinOnline search reveals close to 150 mentions of the video in legal journals. Many notable copyright scholars have devoted a considerable amount of time to the video. Lawrence Lessig, in his book Remix, devotes the first five pages of the introduction to telling the story of this video. He calls it “a perfect YouTube moment” and “a bit of shared culture.” Later in the book, he describes the video as “amateur creativity.” William Patry mentions the video several times in his latest, Moral Panics and the Copyright Wars, as well. On page 98, in a section titled “The Myths of Economic Freedom and Market Fundamentalism,” Patry notes that it is economic freedom which allowed Prince to “sanctimoniously demand” that YouTube remove this video. On page 169, he again uses the takedown of this video as an example of “suppression of free speech and creativity” under the DMCA.

Public interests groups have also joined in the fun. Lenz was aided in her lawsuit by the Electronic Frontier Foundation, which described the case as part of its “ongoing work to protect online free speech.”

Wow.

Threats to freedom of speech and creativity are paramount. But when your claim is that they are threatened by a law passed twelve years ago and the removal of this video is the best example you have as proof, the discussion gets a little silly.

This is a video of a baby. Cute? Maybe. Harmless? Yes. But heroic? A “bit of shared culture” whose removal amounts to “suppression of free speech and creativity?”

Luckily, our society has survived the brief time when Lenz’s video was not available to the world. But does this episode only highlight the DMCA’s sword of Damocles hanging over free speech and creativity? Or is it just another example of the cries of internet freedom fighters that the sky is falling as content industries adapt to technological changes? I think it’s the latter: despite the elevation of this dancing baby video to a cause célèbre, our freedom to speak is not threatened, and any “burden” the DMCA places on users uploading content is almost illusory.

The DMCA and Freedom of Speech

The Digital Millennium Copyright Act of 1998 (DMCA) was made up of several major sections, including the Online Copyright Infringement Liability Limitation Act (OCILLA), which established safe harbors for online service providers that protect them from copyright infringement liability. I briefly discussed these DMCA safe harbors in Viacom Appeals Lawsuit Against YouTube. For more information, check out the Wikipedia entry on OCILLA and Chilling Effect’s comprehensive FAQ About DMCA. To recap, the DMCA shields online service providers from secondary copyright liability if they remove material when requested by a copyright owner through a DMCA takedown notice. The user who originally uploaded the material may send a counter-notification to restore the content if they believe the takedown notice was sent in error.

This “notice-and-takedown” procedure was at the heart of Lenz’s case against UMG and has been widely criticized by copyright scholars, legal academics, and bloggers. Partially, the criticism stems from a perceived threat to our freedom of speech:

The DMCA flips the defaults on speech. Where ordinarily speech remains available until someone files and wins a lawsuit or settlement against it, the DMCA forces a speaker to take action to re-assert the lawfulness of his speech, in the form of a counter-notification, or if he wants uninterrupted speech, a lawsuit. It is precisely this mechanism by which the chilling effect operates to censor. ²Wendy Seltzer, Free Speech Unmoored in Copyright’s Safe Harbor: Chilling Effects of the DMCA on the First Amendment, pp. 7-8 (March, 2010).

Copyright laws occupy a unique position in the free speech landscape. On the one hand, they are without a doubt a categorical restriction on one’s right to speak – you cannot communicate someone else’s expression without permission. On the other hand, copyright is often considered the “engine of free expression” – the exclusive rights it grants provide incentives to authors to create and disseminate new ideas and expression. ³Harper & Row v. Nation Enterprises, 471 US 539 (1985). Mindful of this inherent paradox, courts have consistently rejected First Amendment defenses to copyright laws. ⁴L. Ray Patterson, Free Speech, Copyright, and Fair Use, 40 Vanderbilt Law Review 1, 3 (1987). Instead, they typically subscribe to the view that copyright law has “built-in First Amendment accommodations” – namely, the idea-expression continuum and fair use. ⁵Eldred v. Ashcroft, 537 US 186, 219 (2003). Criticism of the DMCA often does not recognize this different approach to freedom of speech in the copyright context, nor does it consider the free expression rights of copyright owners.

A DMCA notice applies only to the specific site it is targeted at. While “the right to upload videos to YouTube” may some day be recognized as a fundamental right, for now most people  likely realize that there are numerous ways to get your message out on the internet. Yet free speech critics of the DMCA takedown procedure seem to be unaware of these alternatives. One author even went so far as to claim that perhaps presidential candidates would have the resources to share a video elsewhere, but “most individuals would not have alternatives” if their video was removed from YouTube. ⁶Seltzer, supra.

YouTube may be the most popular video hosting site, but it is far from the only one out there. Here is a list of over 300 video sharing sites like YouTube. Not enough? Wikipedia has a list of video hosting sites with over a dozen more not on the first list. You don’t even have to limit yourself to video-only sites since there are many companies which offer shareable file-hosting. Here’s one list with over 30 such services– many free. Worst comes to worst, you can set up your own site and host your own content. It may cost a couple bucks a month, but does that rise to an unconstitutional restriction on free speech? Is it a violation of the First Amendment to require you to pay to host and distribute your own content just because companies exist that offer to do that for free?

Wanting the Baby and the Bath Water

The burden DMCA takedown notices place on users like Lenz often accompanies free speech criticism.

Shouldn’t we be just as worried about the completely innocent individual hit with a DMCA takedown and the process they need to go through to get their legal content back online? Given how massive the damage awards can be for simple (even incidental or accidental) copyright infringement, the fact that there is barely any real punishment for bogus copyright claims seems incredibly one-sided and unfair. ⁷TechDirt, Should Copyright Holders Pay for Bogus DMCA Takedowns?

Leaving aside worrying about the tragedy someone faces when they can’t have their video hosted on another person’s site for free, this type of criticism misses a key aspect of the DMCA: it does not affect the liability of the user. Complying with the takedown procedures of the DMCA only shields the service provider from secondary liability. If a user uploads copyrighted content without permission, that user has directly infringed a copyright. The DMCA does not stop the content owner from suing the user directly. A content owner can still sue the user for copyright infringement after sending a DMCA notice even after the content is taken down by the service provider since the infringing act has already been completed. The owner can even sue the user without sending a DMCA notice – it is only the service provider who receives a safe harbor from liability.

The reason content owners don’t routinely sue users is based on practical considerations – primarily the cost of lawsuits. In a way, the DMCA protects users. It gives content owners a more efficient alternative to managing piracy that doesn’t require mass lawsuits on users. Without the DMCA, a user uploading copyrighted content would still be faced with the same liability.

So how about those users, like Lenz, whose content was not infringing but removed anyway? Well, the DMCA provides a counternotice procedure for users to respond to situations where a notice was mistakenly sent – notice that requires little more than your name, identification of what was removed, a statement affirming a good faith belief that it was removed by mistake, and a signature. ⁸17 USC § 512(g)(3). In Lenz’s case against UMG, the court also held that content owners must determine if a specific use is fair before sending a DMCA notice while allowing a user to recover damages, attorney fees, and court costs if a particular notice was sent in bad faith rather than by mistake. This seems to me a fair balance. The same procedural burden is placed on content owners to protect their copyrights from thousands of infringing uses among multiple sites as it is on the rare user like Lenz whose content was removed from a free, third-party site by mistake or bad faith.

But this, it seems, is still not enough for some critics of the DMCA takedown procedure. After the court awarded Lenz attorney’s costs in her case, one critic responded:

Compare this, of course, with the statutory damages given to those who infringe on copyrights — starting at $750 for sharing a single item and going way up from there. How is that equitable? ⁹TechDirt, Damages Possible, But Limited, For Bogus DMCA Takedowns.

Again, this misconstrues key aspects of the Lenz case and the DMCA. Damages are available to users who receive “bogus” takedown notices – it’s just that in Lenz’s case, there were no damages (only attorney fees and costs). While it may be difficult to come up with examples of a user who would suffer a cognizable loss as a result of their content being wrongfully taken down from a third-party site, I’d imagine that type of situation is rare. No matter to critics though, as it seems they want the baby and the bath water. They’re arguing not that the burden of responding to takedown notices is too high, but that there should be no burden at all. It’s too much trouble for the one Lenz who may have a fair use argument out of thousands of YouTube user users who do upload infringing material to say “on the contrary, my use is fair.”

One Final Note

I realize the story revolving around the “Let’s Go Crazy” video has largely run it’s course, but I think it remains relevant today. The case has become enshrined in copyright criticism as a seminal example of “attacks” on freedom of speech and creativity by the hands of the big, bad content industries. For a while it occupied center stage in the copyright debates, which struck me as odd, considering what it is: a low-quality video of a stranger’s baby dancing. But as I came to realize, the use of this video as a launching pad for copyright criticism typifies much of the imbalance between creators and users that is present both online and in academic scholarship – how do we protect the “heroic” Lenz’s from those who wish to destroy free speech?

Perhaps those one million people who have seen the video have benefited. Perhaps our society and culture have been enriched by this display of amateur creativity, and the progress of art and knowledge has been promoted. However, before fully embracing this line of thinking, we should ask who else benefits from it. Who benefits from the idea that user-generated content, which drives traffic to a site, should have stronger protections from removal. Who benefits from the idea that other sites are not an adequate alternative to YouTube? And who benefits from placing less burdens on users to stand behind whatever they upload, less burdens on the sites to police what is uploaded, and more of a burden on the content owners?