US copyright office still mad at dancing baby

Monday, May 25, 2020

Last week the US copyright office released it’s long awaited (in copyright circles at least) Section 512 Study1. Section 512 of the US copyright code codifies the notice and takedown rules for Online Service Providers (OSPs) that were established by the Digital Millennium Copyright Act (DMCA) in 1998. In the area of copyright this is essentially the equivalent of the Article 14 of the e-Commerce directive that has been at the center of much of the controversy surrounding Article 17 of the Copyright in the Digital Single Market directive.

The Section 512 Study is a first step towards a possible legislative reform of the US rules that the entertainment industry has been lobbying for since the DCMA. At first glance the study stops short of fully endorsing the entertainment industry’s wishlist: It does not include Article 17 style requirements for OCPs to make best efforts to prevent the availability of works (i.e an indirect obligation for upload filtering), or to implement notice and staydown systems.

On the other hand a lot of the findings seem to undermine the legal position of online platforms (and their users2) and strengthen the position of rightholders. On the Kluwer copyright blog Pam Samuelson provides a first assessment which contains this passage:

The biggest disappointment for me in the Section 512 Study was its cavalier and largely dismissive attitude toward fair use. The Study discounted evidence of wrongful takedown notices offered by OSPs and civil society groups. It criticized as wrongly decided the Ninth Circuit’s decision in Lenz v. Universal Music Group Corp. [] (9th Cir. 2016). Universal sent a takedown notice to YouTube regarding Lenz’s short video of her baby dancing with some Prince music in the background, which Lenz thought was fair use. The court in Lenz held that a copyright owner could not claim that it had a good faith belief of infringement before sending a takedown request if it did not consider whether a use such as Lenz’s might be fair.

The Study notes that some OSPs have decided not to remove content alleged to infringe when the OSPs were convinced the challenged uses were fair. The Study chided them for doing so: “OSPs do not appear to be fully honoring the requirement in § 512(c)(1)(c) that upon receiving a takedown notice that is compliant with § 512(c)(3), they ‘respond[] expeditiously to remove or disable access to’ the material.” Under the Office’s interpretation of § 512, in other words, OSPs must remove or block access to content about which a takedown notice has been received regardless of whether the use is fair.

This approach would render fair use a meaningless protection for freedom of expression on online platforms. The attempt by rightholders and copyright maximalists to frame exceptions and limitations to copyright as privileges that can only be claimed ex-post (be it in the form of the DCMA counter notice process or the new complaint and redress mechanism established in Article 17 of the DSM Directive) has the potential to do serious damage. While it remains to be seen if this new attack on fair use as a ex-ante users’ right protection will be successful, it is worth noting the the EU system with its specific exceptions may ultimately provide stronger legal safeguards here3.

  1. The study references one of my recent writings in a (fairly innocent) footnote (fn 339 on page 63) ↩︎

  2. The study makes the same mistake that policy makers made during the EU copyright reform discussion: It frames the the copyright debate as one between two industries and ignores that users have a distinct stake in copyright policy discussions that does cannot be collapsed into the position of the tech industry (although there is some overlap). As Samuelson notes in her analysis: “The Study’s assumption that OSPs and copyright industries are the only stakeholders whose views on the DMCA safe harbors should be heeded is disturbing. What about, for instance, the user-creators who depend on OSPs such as Etsy or Ravelry to make their creations available? What about Internet users more generally?” ↩︎

  3. Especially now that the exceptions for the purposes of quotation, criticism, review, caricature, parody and pastiche are mandatory and that in its recent case law the CJEU has recognized that these exceptions “􏰇confer rights on the users of works”. ↩︎