
Win for Fair Use in ‘Dancing Baby’ Lawsuit - sinak
https://www.eff.org/press/releases/important-win-fair-use-dancing-baby-lawsuit
======
AdmiralAsshat
How will this work in practice? Will it actually hold them responsible for
court fees if they file another bogus request like this, or will the only
thing that comes out of this be a simple checkbox on the DMCA takedown form
that says "I considered fair use before filing this takedown request"? Will
this actually help defendants establish the prohibitively difficult "bad
faith" request on behalf of IP holders?

EDIT: The Ars Technica article gives some time towards answering my
concerns.[0] The short answer is, somewhat.

 _" A copyright holder who pays lip service to the consideration of fair use
by claiming it formed a good faith belief when there is evidence to the
contrary is still subject to 512(f) liability,"_

[0] [http://arstechnica.com/tech-policy/2015/09/eff-scores-a-
win-...](http://arstechnica.com/tech-policy/2015/09/eff-scores-a-win-in-long-
running-dancing-baby-copyright-case/)

~~~
zyxley
The biggest impact I could see this happening would be sinking auto-DMCA bots,
since without a human in the loop there isn't any consideration of fair use at
all.

~~~
comex
Notably, the decision mentions automation in passing as a potentially
acceptable method, but the example given is a program determining that two
videos are almost identical, a very far cry from the standard used by such
bots today:

> We note, without passing judgment, that the implementation of computer
> algorithms appears to be a valid and good faith middle ground for processing
> a plethora of content while still meeting the DMCA’s requirements to somehow
> consider fair use. Cf. Hotfile, 2013 WL 6336286, at *47 (“The Court . . . is
> unaware of any decision to date that actually addressed the need for human
> review, and the statute does not specify how belief of infringement may be
> formed or what knowledge may be chargeable to the notifying entity.”). For
> example, consideration of fair use may be sufficient if copyright holders
> utilize computer programs that automatically identify for takedown
> notifications content where: “(1) the video track matches the video track of
> a copyrighted work submitted by a content owner; (2) the audio track matches
> the audio track of that same copyrighted work; and (3) nearly the entirety .
> . . is comprised of a single copyrighted work.”

~~~
Natsu
This would seem to be rather weak, so at least they're saying this only as
dicta. We've already seen cases where people use public domain content and
then end up using such algorithms to claim the content away from other people,
which would seem not to be covered by the above, though perhaps in that case
they would say that they should have known of their lack of ownership before
turning the bots loose.

And it would seem to spell trouble for the people who just grab the top X
results for certain search keywords and then DMCA them without even looking at
the sites.

At the very least, I would like to see them put the burden of proof on the
person filing the DMCA takedown as to precisely where and how they formed
their belief in good faith whenever the takedown is wrongly filed. It's not
like anybody else is in a position to testify as to their state of mind and if
they're truly responsible parties, they should have no trouble in accounting
for what factors somehow mislead them. The courts can also request details on
their accuracy: how many such notices have they filed, how many of those have
been putback, etc. to decide whether or not they're actually behaving
responsibly.

Naturally, I would presume that any party unwilling or incapable of providing
such details was, by that very fact, irresponsible. Anyone not watching what
they're doing is being careless.

~~~
JupiterMoon
We have to remember that bots are written by humans and in this case merely
implement a business process. There is no reason that the owner of the bot
can't store their own logs of what take down requests are sent and with which
version of their bot and therefore (given a well written bot) this should give
them an adequate log of the reasons behind the take down notice. It seems to
me like this ruling will cause the required sophistication of bots to be
greater rather than precluding their usage.

~~~
Natsu
Every one of them is also, nominally, signed by a lawyer. There are words for
lawyers that don't have records of the things they've signed and 'responsible'
isn't among them.

~~~
JupiterMoon
Whilst I sort of agree with you (and also think that IP law is absolutely
stupid in many respects at the moment). The shear number of potential
infringers that the internet as a distributed publishing platform has created
vs the number of people that can be employed creates a situation where
automation is required. I don't see any reason why the legal process
encapsulated by the bot can't be the thing that the lawyer signs off on and
takes responsibility for.

EDIT: Over here in the UK there is precedent that lawyers for e.g. speculative
invoice cases involving copyright claims (also know as copyright trolling) can
have their right to practise law revoked if the claims are found to be
spurious. Maybe lawyers that evaluate DMCA takedown bots should face similar
consequences if the bot is too heavy handed? This could create the correct
incentive for them to ensure that obvious fair use is accounted for.

~~~
Natsu
I can agree with that if they actually take responsibility for it. I'm just
saying that running one with no logs and little oversight is inherently
irresponsible behavior.

I rather like that UK precedent.

------
pdabbadabba
I'll repost here what I said about my parallel (but apparently less popular)
submission:

TL;DR - This is the [in]famous "dancing baby" case in which Universal Music
issued a takedown request for a home video of a baby dancing to Prince's _Let
's Go Crazy._ The notice resulted in the video being taken down and then,
eventually, put back up after a flurry of DMCA counter-notices. The creator of
the video, Lenz, then sued Universal Music for making a bad faith DMCA
takedown request. (DMCA allows suits for "any damages" arising from a material
misrepresentation in a DMCA takedown notice.)

The DMCA requires takedown notices to include a "good faith belief" statement
that that the targeted work "is not authorized by the copyright owner, its
agent, or the law." The opinion essentially holds that if you don't think
about fair use, or if you know about a viable fair use defense, then this
"good faith belief" statement is actionably false.

Note that this standard is quite high. If the copyright holder can show that
it formed a subjective belief that the targeted work is not protected by fair
use (even if that belief is pretty crazy), then it's not liable.

So, an interesting opinion, but it's pretty hard to see how a properly-
represented defendant could lose under this legal standard. It may, however,
limit the use of certain automated approaches to finding "infringing" content.
While the opinion points out automated ways that a copyright holder could
reasonably identify works that are not likely to be protected by fair use
(such as where all of the audio and video perfectly matches the copyrighted
work), human review will likely be necessary in many other situations, and
these humans may be far more cautious than they used to be for fear of an
eventual class-action lawsuit.

Opinion -
[http://cdn.ca9.uscourts.gov/datastore/opinions/2015/09/14/13...](http://cdn.ca9.uscourts.gov/datastore/opinions/2015/09/14/13-16106.pdf)

Ars Technica Coverage - [http://arstechnica.com/tech-policy/2015/09/eff-
scores-a-win-...](http://arstechnica.com/tech-policy/2015/09/eff-scores-a-win-
in-long-running-dancing-baby-copyright-case/)

The video -
[https://www.youtube.com/watch?v=N1KfJHFWlhQ](https://www.youtube.com/watch?v=N1KfJHFWlhQ)

~~~
tfinniga
Does that mean that this ruling outlaws completely-automated takedown notices,
because it requires a belief to be formed about each instance?

~~~
pdabbadabba
The answer seems to be "sometimes."

See my edited comment (I was just in the process of addressing this when you
posted your question). Also see page 19 of the opinion which addresses exactly
this issue.

------
dankohn1
In case you're curious, it's about this video:
[https://www.youtube.com/watch?v=N1KfJHFWlhQ](https://www.youtube.com/watch?v=N1KfJHFWlhQ)

Needless to say, I don't see it diminishing Prince album sales.

------
ck2
For a moment I was like "dancing baby" ?

and I was thinking of the creepy animated baby from Ally McBeal

[https://en.wikipedia.org/wiki/Dancing_baby](https://en.wikipedia.org/wiki/Dancing_baby)

wow I am old, but so is the internet, that's from the late 90s

~~~
jack-r-abbit
Showing my age as well. I thought the same thing.

[https://www.youtube.com/watch?v=-5x5OXfe9KY](https://www.youtube.com/watch?v=-5x5OXfe9KY)

------
fryguy
I find it amusing that this was in there: "Universal's claim that a victim of
takedown abuse cannot vindicate her rights if she cannot show actual monetary
loss". Almost assuredly Universal can't show actual monetary loss from the
copyright infringement of the artist formerly known as the artist formerly
known as Prince song, they shouldn't have tried to take it down by their own
logic.

~~~
cwp
You've got it backwards. It's the author of the dancing baby video that has to
show monetary loss. That is, Lenz cannot sue Universal unless she can show
that taking down her video caused her monetary loss.

~~~
kej
fryguy knows that, he's saying that it's hypocritical of Universal to argue
against Lenz's case since she can't show actual damages while having
previously issued a DMCA takedown notice even though they probably couldn't
show actual damages.

------
rayiner
This is a huge ruling for copyright holders because it'll make it much more
difficult to use automated software to send out DMCA takedown notices.

That said, it's clearly the right answer. DMCA takedowns should be filed in
good faith, a mental state requirement automated software cannot meet. Nobody
said protecting your IP rights must be easy.

~~~
throwawaykf05
_> Nobody said protecting your IP rights must be easy._

Shouldn't it be at least easy enough to make the hilders' situation somewhat
more symmetric with the scale of infringement that happens on the Internet?
How is an industry of a few hundred thousand people (of which only hundreds
probably man the DMCA stations, so to speak) supposed to cope with
infringement by hundreds of millions of people?

~~~
JupiterMoon
The most obvious cases can still be handled by bots. The bots will have to be
improved if good faith continues to be enforced as it has been in this case.
Less clear cut stuff will need to either be allowed to slide or be vetted by a
human as one part of the process. One could imagine that videos flagged as
potentially infringing are queued by the system and people are paid to
evaluate them according to a set of criteria that allow for fair use etc.

As you bring up the issue of asymmetry. I do agree with you that there is a
numerical asymmetry between rights holders and the public. However, once a
case progresses there is a financial and legal asymmetry in favour of the
rights holders. The DMCA takedown system tends to exasperate this as it
removes publishers liability completely if they comply with a DMCA in favour
of the rights holders.

Basically intellectual property laws need some more common sense changes to
bring balance so that everyone acting in good faith can feel safe and make a
profit.

------
kordless
> In September 2007, Prince released statements that he intended to "reclaim
> his art on the internet."

Hey Prince, do us a favor and take it all away and keep it for yourself. If we
can't film our babies dancing to music that we listen to with them, and share
it with others, that's a world I don't want to live in. Better you just mosey
on along by yourself.

------
vortico
Any ruling toward the original purpose of copyright, where it merely prevented
large manufacturers from making a profit on others' copyrighted work, is a
good thing.

~~~
aidenn0
While I generally agree with you:

1) Youtube is a large publisher

2) Youtube runs ads and profits on posted videos.

3) Copyright predates the ability for individuals to make millions of copies
for essentially zero-cost, so some updating to the rules for the digital era
makes sense.

~~~
cookiecaper
Copyright has also been taken to its logical extreme in recent history,
granting copyright terms that, in many cases, won't expire for 150 years or
more from the date of publication, well beyond the lifespan of any human.

Copyright was supposed to be a compromise between the public and the
rightsholder, where the public was willing to give up some of its natural
right to copying and sharing in order to incentivize creativity. We've left
all that in the dust now, and our copyright laws are currently based solely on
scare tactics from massive media conglomerates.

IP reform is badly needed but I think we've still got a little ways to go
before it seems so "common sense" that it occurs. Once the generation that
grew up on Napster and its successors gets into their 50s, we _might_ see some
substantive change.

~~~
aidenn0
Unfortunately I've seen the opposite result so far. I've seen authors
literally balk at the suggestion that they shouldn't have full control over
their creations for perpetuity, and upon further digging, their point of view
was that anything less is immoral, not just illegal.

~~~
rayiner
I think that's a really compelling viewpoint. Why should society have any
rights to an artistic creation? I can have perpetual rights to some land that
my ancestors (well not _my_ ancestors since I'm an immigrant) stole from
native Americans, which existed long before any human was alive, but somehow
my right to something that I created that never existed before is subject to a
social balancing? I don't buy it.

~~~
CamperBob2
Your land didn't depend on any other land in order to be created, for one
thing. If you want perpetual copyright, go live on a deserted island and work
without any outside influence.

~~~
rayiner
Sure, creative works may be influenced by other creative works, but those are
also protected by copyright and bought and paid for. I don't see how your
argument justifies anyone else having rights to your creative works.

~~~
magicalist
> _I don 't see how your argument justifies anyone else having rights to your
> creative works._

Considering that they are intangible, I think you'll have to justify _your_
exclusive rights to your creative works and why the government should enforce
them. Fortunately (in the US) the constitution has you covered, and notably
does not root it in an abstract right of ownership but as a _means_ toward
"the progress of science and useful arts".

~~~
rayiner
I agree that the rival nature of physical property tends to cut in favor of
stronger protections for physical versus intangible property. On the other
hand, given the moralistic undertone of "rights" I think it doesn't make sense
to ignore the other distinction, which is that intangible property is much
more the product of human will and effort than many kinds of tangible
property, particularly land. I think that cuts the other way--in favor of
stronger protections for created property than not-created property.

------
Zikes
As to how this will affect YouTube and the like, I don't think it will.
YouTube's process is not actually DMCA, it's a separate but similar entity
following YouTube's own rules and policies. That's why YouTube's system is
rife with abuse with no real recourse for content creators whose works are
unfairly flagged.

~~~
pdabbadabba
I don't think this is correct. This very case is about a video hosted on
YouTube. The DMCA requires YouTube to have a takedown process that complies
with the DMCA's rules in order to avoid liability for hosting infringing
content. And YouTube likely cannot exculpate copyright holders from liability
for making misrepresentations in their takedown requests since that liability
is explicitly created by statute.

~~~
bjt
Yes, YouTube needs to honor DMCA takedown requests, but that doesn't stop
YouTube from creating another YouTube-specific kind of request that people can
make if they want to make some money off their content that other people have
uploaded. That's what YouTube has done with Content ID. See
[https://support.google.com/youtube/answer/6013276](https://support.google.com/youtube/answer/6013276)

> This very case is about a video hosted on YouTube.

This case is about a video posted to YouTube 8+ years ago. Content ID was just
getting off the ground then, and wasn't at issue in this case.
[https://en.wikipedia.org/wiki/YouTube#Content_ID](https://en.wikipedia.org/wiki/YouTube#Content_ID)

~~~
pdabbadabba
Fair enough. But I think this raises an interesting, and possibly challenging
legal question: is a takedown request (including the standing requests that
that content id allows) a "notification of claimed infringement" under the
DMCA even if YouTube calls it something different? I could see this going
either way if it were tested in court (maybe it already has been--I don't
know). But if I were YouTube, I would try to keep my content ID procedures in
line with the DMCA procedures voluntarily so that I wouldn't have to find out
the hard way. The terminology and general procedure that YouTube uses for
content ID roughly parallel the process set out in the DMCA, so I'm inclined
to think that YouTube is thinking the same thing.

I expect that someone in YouTube's legal department already has a memo
someplace discussing the implications of this ruling for content ID that
addresses these very issues.

~~~
magicalist
As I also posted above, you're correct and Youtube falls back to the usual
DMCA takedown procedure[1]

[1] [http://arstechnica.com/tech-policy/2012/10/youtube-
finally-o...](http://arstechnica.com/tech-policy/2012/10/youtube-finally-
offers-a-meaningful-contentid-appeal-process/)

------
thyrsus
What effect, if any, does this have on musicians complaining about the use of
their work by issue advocates, e.g., the group Survivor complaining about the
use of "Eye of the Tiger" by Mike Huckabee at the Kim Davis support rally?

~~~
pdabbadabba
I think none, since those performances are not subject to the DMCA takedown
procedures at issue here.

It could affect _videos_ of those rallies posted online, but only in that the
artists will have to form a good-faith (though possibly inaccurate) belief
that these performances are not fair uses before sending takedown notices.

------
jayess
Quite a lengthy docket at the trial court level -- the case was initiated in
2007!

[https://www.unitedstatescourts.org/federal/cand/196424/](https://www.unitedstatescourts.org/federal/cand/196424/)

------
doh
Definitely interesting result.

The primary problem is that nobody is looking for a win-win solution. Content
ID was built as a copyrights enforcing tool and copyright holders scorned by
the Napster, Kazaa, etc. experiences don't see any other way but take down.

There are many other ways how to not harm the user and also be compensated.
For instance put a link to the original song where people can buy/listen to it
if they are interested.

It's not only the law but the common sense that has to change towards
copyrights and its enforcement.

~~~
TeMPOraL
Sadly, companies have no incentives to play nice and go for win-win. It's a
kind of asymmetric prisoner's dilemma, when one party can intimidate another
into cooperating, therefore being free to defect and take the bigger payout.

------
skywhopper
Ugh. (Current) copyright law is a cancer.

