Fair Use Through the Lenz of § 512(c) of the DMCA: A Preemptive Defense to a Premature Remedy?

• Author: Joseph M. Miller
• Position: J.D. Candidate, The University of Iowa College of Law, 2010
• Pages: 1697-1729

Joseph M. Miller. J.D. Candidate, The University of Iowa College of Law, 2010; B.A., Brigham Young University, 2005.

Page 1699

I Introduction

America is an information culture. In contrast to the world in which Guttenberg developed his printing press, there are few obstacles censoring, limiting, or delaying the information that is publically accessible. Society’s capacity to locate, consume, and disseminate information is unsurpassed, largely as a result of a revolution in publishing equal to, if not greater than, the Guttenberg press: the Internet. The Internet surpasses Guttenberg’s press with its diverse, accessible, inexpensive, and simple communication tools such as Facebook, MySpace, LinkedIn, Skype, Blogger, and YouTube. These tools fall just shy of Harry Potter’s magical floo-powder in their ability to transport individuals—rather, their images and words—into any shop, school, home, or hamlet.

America is also a “remix culture.”¹ Hand in hand with society’s unprecedented ability to access or relay information is society’s ability to quote, parody, or otherwise restructure information and publish it online in altered form. Though copyright law protects much of the information society consumes from reproduction, adaptation, and distribution, copyright law also protects those who remix that information for certain purposes. Remixing and disseminating information for purposes such as criticism, scholarship, and education, for example, are uses whose social benefits outweigh the costs to the copyright holder—a doctrine called fair use.² Thus, bloggers can quote and criticize books they have recently read,³ comedy groups can parody Junior Miss USA contestants⁴ and presidential candidates,⁵ and search engines can index photographs.⁶

In traditional copyright cases, where the copyright holder sues the user for infringement, each side will present its case, resulting in an injunction against uses that are infringing (or damages). However, the speed with which the Internet can disseminate potentially infringing information and the sheer amount of Internet users who are involved in remixing prompted quicker and more-controversial procedures in copyright law. Instead of suing each and every potential infringer on the Internet, copyright holders can simply notify the online-service provider (“OSP”) of the potentiallyPage 1700 infringing material and require the OSP to remove it or risk sharing liability for infringement. Thus, the copyright holder achieves speedy removal of potentially infringing information. This change positively affects society where the infringement is clear. Where infringement is not clear, however, the change can harm society by depriving it of valuable information.

For example, imagine you are a proud parent recording your baby’s first steps.⁷ Your baby appears to have a keen sense of rhythm, for you notice that he is swaying back and forth to music playing from the radio. You review the video and decide it is too cute to keep to yourself, so you get online, upload the video onto YouTube, and forward it to all of your friends and family. Your dad, who has always been slow to respond to e-mails, responds a few days later with a short e-mail: “What video?” Confused, you go online to find it, but it is gone. That day, however, you receive an e-mail from YouTube saying that the owner of the copyright in the music to which your child was grooving demanded the video be taken down for infringement.

The law provides the proud parent with remedies that, at best, cause substantial delay in restoring the video or remain out of reach either because the cost of litigation is too high or because the standard of proof is too difficult. The result? A time-sensitive video has lost much of its “bang,” and the next time the parent captures a cute moment on video, she may choose to avoid the Internet as a forum for sharing it and wait instead until the next family reunion.

Perhaps the most disturbing part of this story is that everyday users cannot access their remedies as readily as copyright holders, who, as in the example above, may be large and wealthy companies. Nor can users access remedies until after the copyright holder has already been granted its remedy. This inequality leads to abuse by those who can easily affect takedowns, aggravating the loss or delay in the dissemination of valuable information to society and chilling online speech.

It gets worse. Society has the potential to lose more than family videos. Copyright holders can also effect the removal of time-sensitive news reports, political parodies, competitors’ sale advertisements, and demonstrators’ calls to organize before the merits of their claims of infringement have ever been determined. Thus, takedown provides a premature remedy that, when used abusively, benefits copyright holders to the detriment of the rest of society.

However, the everyday parent from the example above called on the courts to address the inequality and abuse fostered by the takedown process. The result is Lenz v. Universal Music Corp.,⁸ a 2008 decision by a California district court that decided that since copyright holders can receive a remedy before a court determines whether the fair-use defense applies, copyrightPage 1701 holders are now required to consider fair use before they seek takedown.⁹ The decision, in effect, applies the fair-use defense preemptively in an effort to prevent a premature remedy from becoming an abusive tactic.

This Note examines how Lenz employs the fair-use analysis in the context of online-copyright laws—specifically those governing the takedown process in section 512(c) of the Digital Millennium Copyright Act of 1998¹⁰ (“DMCA”)—and ultimately concludes that while Lenz is a step in the right direction, it does not go far enough to relieve an excessive burden on users and eliminate abusive practices. Part II introduces § 512(c), reviewing the history and purpose of the DMCA and the takedown process. This part also examines the “good-faith belief” of infringement that the law requires copyright holders to form prior to sending takedown notices. Users who litigate over takedowns must prove that copyright holders lacked a good-faith belief using a subjective standard. This burden presents a tremendous obstacle to a user’s recovery and fosters an abusive online environment. Thus, copyright holders can use § 512(c) as a sword to suppress unwanted expression rather than a shield to protect their own rights.

Part III then introduces the Lenz decision as a response to § 512(c) abuses, including its effect on the application of fair use when used in the context of § 512(c). After introducing Lenz, this Part reviews the history and purpose of fair use and how it is traditionally applied in copyright litigation involving the Internet. Finally, this Part argues that Lenz recognizes the abusive environment § 512(c) creates and that Lenz attempts to provide a solution by requiring copyright holders to replace their “shoot, ready, aim” strategy with the responsibility of considering whether online postings are fair use before initiating takedown procedures. Lenz thus departs from the traditional application of fair use as an affirmative defense by giving it a preemptive posture in the context of § 512(c).

Part IV recommends additional changes in § 512(c) litigation that may level the playing field between copyright holders and users more adequately than the measures adopted in Lenz can on their own. One improvement that would build on Lenz is to replace the subjective good-faith standard with an objective one. Such a change lowers the burden of proof on the user and puts very little burden on the copyright holder. Another suggested improvement, taken from copyright litigation outside of the DMCA, is the doctrine of copyright misuse, which borrows from patent law and essentially punishes copyright holders who use their copyrights to suppress legitimate uses or claim greater rights than they really have. Finally, this Note suggests adopting the “unreasonable claims” standard for awarding attorney’s fees, which is a doctrine that is gaining traction in copyright litigation outside of the DMCA and is meant to deter frivolous infringement claims.

Page 1702

This Note advocates increased protection for Internet users from potential abuses of § 512(c), a process designed to effectively protect copyrights from online infringement. In doing so, this Note does not advocate diminishing copyright protection, only to realign the incentives that the takedown process, when left unchecked, creates. The hope is that properly aligning the incentives and distributing the relative burdens will eliminate abusive tactics that unduly enlarge copyright protection and chill free speech over the Internet.

Creating copyright protections for the copyright holder as well as the fair user is a difficult balancing act, an effort that is currently embodied in the DMCA. Thus, the first step is to...