In Lenz v. Universal Music Group – aka the dancing baby case – EFF and co-counsel Keker & Van Nest, LLP have waged a long battle on behalf of homemaker Stephanie Lenz to ensure that Internet users have protection from unfounded claims of copyright infringement. Today, a broad array of third parties joined the fray, and we couldn’t be more pleased to have their support.

In case you haven’t been following the latest, the case is now on appeal at the Ninth Circuit. A variety of issues have been raised, but the key questions are whether a content owner has to form a good faith belief that a use is not a fair use before sending a takedown notice under the Digital Millennium Copyright Act (DMCA); whether that belief as to the law has to be reasonable; and the kinds of damages that are available if the sender fails to do so. We filed our opening brief on these issues last week.

Several companies and organization have now submitted amicus, or “friend of the court,” briefs weighing on these questions. One comes from a collection of online service providers (OSPs) that host user-generated content: Automattic (Wordpress), Google, Twitter, and Tumblr. The second comes from the Organization for Transformative Works, Public Knowledge, and the International Documentary Association, represented by the Stanford Fair Use Project.

Both briefs explain that unfounded allegations of copyright infringement have real and dangerous consequence for fair use and lawful speech. Pointing to numerous  specific examples, they document persistent abuse of the notice and takedown process. These examples include:

  • Major networks sending takedowns targeting McCain-Palin campaign videos (that made clear fair use of news excepts) just weeks before the presidential election
  • A poet sending takedowns to remove blog posts that criticized his online enforcement efforts
  • A medical training service that forged customer testimonials sending a takedown targeting screenshots that exposed the scam
  • A manufacturer of electronic voting machines sending takedown notices to suppress criticism of the machines.

These improper takedowns, the amici stress, impose a variety of burdens on services providers, remix artists, and rights-holders as well. For example, ordinary bloggers, vidders, and other artists don’t have easy access to lawyers to help them get their content restored, much less hold a rightsholder accountable for taking it down in the first place.

Both also explain that DMCA, properly interpreted, is designed to deter this abuse of the notice-and-takedown system. In particular, they note, the statute requires the sender of a takedown notice to affirm that the use is not “authorized by law.”  They argue, as we did, that “authorized by law” must be intended to include “authorized by the fair use doctrine.”

Universal Music and groups supporting it (including the MPAA and the RIAA) insist that it’s too hard for them to consider fair use before sending a takedown notice. They argue that because some fair use determinations are challenging, they should never be required to include a fair use consideration in their takedown procedures.. The consequences of this position are startling: copyright owners could takedown unquestioned fair uses – like product reviews, mash-ups, or academic lectures – without facing any consequences.

The brief submitted by OTW, PK, and IDA explains that, despite Universal’s insistence that fair use is just too hard, there are many straightforward cases. In fact, there are literally millions of easily identifiable examples of fair use (e.g. quotations in book reviews, academic criticism, and clips used for parody). And courts have frequently found fair use defenses to be obviously valid.

The OSPs agree, and also explain that the DMCA not only requires rightsholders to consider whether a use is fair, it also requires rightsholders to form legally reasonable beliefs based on that consideration. Universal insists that as long as a copyright owner subjectively believes the use in infringing, that is enough. The OSPs respond:

Such an interpretation would lead to the illogical result that the more objectively unreasonable a copyright holder is, the more legal leeway it has to send unfounded notices.

Congress did not intend, and the law does not support, such an absurd result.

Finally, the OSPs urge that attorney’s fees and costs associated with bringing a claim should be available to a prevailing party under that DMCA. This result is clearly supported by the statute, which provides that a victim of misrepresentation is entitled to “any damages, including costs and attorneys’ fees.”

Taken together, these briefs help explain the real stakes of this case. We appreciate the support and hope the Ninth Circuit will take heed.

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