EFF in the News
The suit, known as the “dancing baby” case, has become famous for its focus on the kind of Internet activity that millions of ordinary people engage in, posting candid videos of family and friends that may only incidentally include copyrighted media like songs. The Electronic Frontier Foundation, an advocacy group that represented Ms. Lenz in her lawsuit against Universal, called the judges’ decision a victory for Internet users.
“Today’s ruling sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech,” Corynne McSherry, the foundation’s legal director, said in a statement.
The 9th U.S. Circuit Court of Appeals said copyright holders can't demand videos and other content that uses their material be taken down without determining whether they constitute "fair use." It's the first circuit court to issue such a ruling, according to the Electronic Frontier Foundation, the civil liberties group that represented Lenz in her lawsuit.
"(The) ruling sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech," said Corynne McSherry, legal director of the Electronic Frontier Foundation, which represents Lenz.
In an opinion (PDF) published this morning, the three-judge panel found that Universal Music Group's view of fair use is flawed. The record label must face a trial over whether it wrongfully sent a copyright takedown notice over a 2007 YouTube video of a toddler dancing to a Prince song. That toddler's mother, Stephanie Lenz, acquired pro bono counsel from the Electronic Frontier Foundation. The EFF in turn sued Universal in 2007, saying that its takedown practices violated the Digital Millennium Copyright Act.
Corynne McSherry, a lawyer with the Electronic Frontier Foundation representing Lenz, said the decision "sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech."
Electronic Frontier Foundation senior global policy analyst, Jeremy Malcolm, says the proposal surrounding orphan works is "absurd".
"Granting perpetual copyright in orphan works to the state is unprecedented, and extremely ill-advised," says Malcolm.
He also opposes the suggestion that this would extend to the works of copyright owners who are dead – "notwithstanding that their estates would otherwise continue to enjoy the copyright for 50 years after their death".
"The approach of vesting copyright in orphan works in the state may be valid, but after the original copyright term expires, the works should enter the public domain, as they usually would," says Malcolm.
"We applaud the Bill's intention to address the orphan works problem. However, we are very worried by the way that it is proposed to do this."
Proponents of the technology argue that telephone users do not "own" their metadata, and as such, have no right to expect that it be kept private. Nate Cardozo, a staff attorney for the Electronic Frontier Foundation, disagrees.
"The argument that metadata deserves less protection than content has no merit in the 21st century," Cardozo told the Washington Examiner. "Metadata provides enough context to know some of the most intimate details of your lives. Metadata is key to privacy."
Jennifer Lynch, a senior attorney for the Electronic Frontier Foundation, said the challenge to Facebook may be the Illinois law's first test case.
"To my knowledge, this is the first time anyone has tested Illinois' biometrics law, so it will be interesting to see if the court will find Facebook violated that law," Lynch told the Washington Examiner. "If the court does find Facebook violated the law, it would require Facebook to ask all of its users in Illinois for their permission to use face recognition before Facebook could use the technology."
Lynch said she would prefer to see a federal law "that clearly protects our privacy and prevents companies from using our biometrics without consent." However, because it would be difficult to discern when pictures of Illinois' nearly 13 million residents are uploaded, a ruling for the plaintiff could have implications for the way Facebook treats all of its users.
Facebook did not reply to requests for comment.
“It‘s disappointing,” said Sophia Cope, a staff attorney with the Electronic Frontier Foundation in San Francisco. “You have someone in law enforcement putting public pressure on (MasterCard and Visa), the companies reacted, and free speech was impacted.”
Even some critics of the existing law say they believe the government already has enough tools to punish computer crime, without making the proposed changes.
‘‘All of this is a solution in search of a problem,’’ said Hanni Fakhoury, a staff attorney at the Electronic Frontier Foundation, a privacy group.