Importantly, too, he explains that you want to give some thought to the ramifications of disputing an automated takedown: “There are legal ramifications to this, which YouTube hints at and the EFF explains very clearly. If you decide to fight copyright abuse by a large company, you should make sure that you’re on the right side of the fight, that you have a sensible chance of winning a possible lawsuit, and that you’re willing to assume the financial risk. All three of those determinations probably require some serious meetings with a lawyer.”

On the other hand, any copyright owner sending a takedown notice ought to consider the legal ramifications of doing so, since a baseless one relying on the power to outspend an individual fair use claimant might have its own legal downside.

Girl Talk is like Jeff Koons.  In Blanch v. Koons, 467 F.3d 244, 252-53 (2d Cir. 2007), the United States Court of Appeals for the Second Circuit ruled that Jeff Koons’ appropriation of a copyrighted photograph in a painting did not infringe the photographer’s copyright because Koons’s use of the photograph was “transformative”:

Koons is, by his own undisputed description, using [the copyrighted photograph] as fodder for his commentary on the social and aesthetic consequences of mass media. . . . When, as here, the copyrighted work is used as “raw material,” . . . in the furtherance of distinct creative or communicative objectives, the use is transformative. . . . His stated objective is thus not to repackage Blanch’s “Silk Sandals,” but to employ it “in the creation of new information, new aesthetics, new insights and understandings.”

Instead of going after the artists like Girl Talk and Jeff Koons, copyright holdlers (typically large media conglomerates) go after victims they think they can beat into submission.  Thus, for example, Prince’s music company, Universal Music Group, sought to remove the 29 second video of a mom’s son dancing to Prince’s “Let’s Go Crazy” from YouTube via a takedown notice under the Digital Millennium Copyright Act (the “DMCA”).  Other people think suing college students for illegally downloading music is the right strategy for resolving the inevitable conflicts posed by the clash between our new technologies and our old copyright laws.  College students don’t have the money to defend lawsuits brought by media companies.  And, the thinking goes, if a bunch of defenseless law students are deterred, everyone else will fall into line:

In a lot of ways, downloading is more like shoplifting than it is like “piracy,” the term often used for it. Pirates embrace a life of crime; shoplifters often see their activity (wrongly) as an exciting and slightly risky diversion – a relatively petty vice in an otherwise law-abiding life.

The recording industry will have to use similar tactics, and like retail stores, they will have to live with a small loss from undetected stealing. But that loss can be minimized, through warnings, monitoring, and enforcement. And word of enforcement spreads. . . . Few students will keep downloading once their classmates have famously gotten in deep trouble for doing just that. That is good for them, but even better for us. . . .

The more seriously society takes shoplifting, the more shoplifters will be deterred. The same is true, I believe, for illegal downloaders. Every law-breaking student has a diploma at stake, and only a scintilla of students are hardened criminals. Like the thrill of shoplifting, the thrill of illegal downloading may fade quickly in the face of serious penalties, and a real risk of getting caught.

There is a big problem with this reasoning.  The use of copyrighted materials without permission is not like shoplifting.  Intellectual property is not tangible property, and the law does not equate the two.  As I wrote just yesterday,

We are not a society oriented only toward property ownership. Free expression, based primarily in the First Amendment of the Bill of Rights, is also foundational to our society. It is exposure to ideas, and not to their particular expression, that is vital if self-governing people are to make informed decisions. There is, however, an inherent tension here. While the First Amendment disallows laws that abridge the freedom of speech, the Copyright Clause calls specifically for such a law. The First Amendment gets government off speakers’ backs, while the Copyright Act enables speakers to make money from speaking and thus encourages them to enter the public marketplace of ideas. Balancing this conflict is precisely the purpose of the fair use doctrine,

The problem is a real one.  I have a new friend, Cathy Vogan, who has created Futurisms, a film that uses the song Que Sera Sera as a jumping off point to comment on the song’s naivete in the face of Reality.  I think Futurisms is a genuinely creative work.

But Facebook has removed Futurisms from its site, and while the company gives my new friend an opportunity to file a “counter-notification” contending that she has a right to have her film posted, when she looks at what she must declare to file the counter-notification, she sees, in her words, “a scary legal word: ‘perjury,’ and wonder[s] what will happen to me if I proceed.”

Who can blame her?  Should she take on Facebook?  She is a struggling, but fairly well-known video artist with 8 international awards who has never sought to make money from her creative work.”Futurisms” was completed a few months ago, and has never been shown anywhere, besides her website and Facebook.

Stephanie Lenz took on Universal Music Group and won. Thankfully, she had the help of the Electronic Frontier Foundation.  What should Cathy do?  I think she should file her counter-notification.  “Perjury” requires lying, and as long as she doesn’t lie, there’s no harm in filing the notification.  The worst that can happen is that Facebook will refuse to alter its position.

But do we really want to treat artists like shoplifters?

ADDENDUM: Cathy filed her counter-notification, and Facebook has restored FUTURISMS.  Here it is too:

These are truisms, but they are the truisms that are at the basis of the intellectual property wars through which we are living.

There’s a new skirmish on the horizon, brought to my attention by Brian Ledbetter of Snapped Shot. According to Computerworld, “MySpace and Viacom International-owned MTV Networks today moved to resolve some key online video issues by tapping a new technology that inserts advertising into any videos uploaded by users to MySpace — whether they’re authorized or not.”

In other words, if you upload a copyrighted clip, the new technology will insert advertising into the clip whether you want it there or not. The motivations of the copyright owners are obvious. They want money for the use of their copyrighted materials, which they consider their “property.” But, while copyrighted materials are “intellectual property,” they are not property in the sense that real estate, money, and cars are property.

Here’s the rub: the technology poses some serious First Amendment problems. The fair use of copyrighted materials without consent is not an infringement of the copyright owner’s “property” rights.

We are not a society oriented only toward property ownership. Free expression, based primarily in the First Amendment of the Bill of Rights, is also foundational to our society. It is exposure to ideas, and not to their particular expression, that is vital if self-governing people are to make informed decisions. There is, however, an inherent tension here. While the First Amendment disallows laws that abridge the freedom of speech, the Copyright Clause calls specifically for such a law. The First Amendment gets government off speakers’ backs, while the Copyright Act enables speakers to make money from speaking and thus encourages them to enter the public marketplace of ideas.

Balancing this conflict is precisely the purpose of the fair use doctrine, as recognized in In SunTrust Bank v Houghton Mifflin Co., 268 F.3d 1257, 60 U.S.P.Q. 2d 1225, 14 F.L.W. Fed. C, 1391 (2001, 11th Cir.), rehearing denied en ban, 275 F3d 58 (11th Cir. 2001).  In Sun Trust, the owners of the copyright to Gone With the Wind sued the publisher that owned the rights to The Wind Done Gone, a critique of the depiction of slavery and the Civil-War era American South and that used and drew upon the characters and story line from Gone with the Wind.  The court ordered the lawsuit dismissed because The Wind Done Gone‘s use of the characters and story line from Gone with the Wind constituted fair use.  In doing so, the court made clear that “First Amendment privileges are . . . preserved through the doctrine of fair use” and that to hold otherwise would jeopardize “over 200 years” of the constitutional “guarantee that new ideas, or new expressions of old ideas, would be accessible to the public.”

This all goes in part to explain, I suppose, why I am so adamant in my support of the producers of Expelled, despite my contempt for their message and my respect, admiration, and love for their adversaries in their copyright litigation. Free speech is free speech. I even supported the rights of Nazis to march through a community full of Holocaust Survivors (as, of course, did the U.S. Supreme Court). (And, incidentally, I am a member of the board of directors of the local chapter of the Anti-Defamation League.)

So here’s the problem: MySpace and Viacom-MTV are creating technology that will insert advertising into speech that is mine. The mere fact that this speech will be composed in part of materials derived from their copyrighted works does not make my speech theirs; it does not give them the right to inject their advertisements into my own creations. They may think I’m stealing their property if I take a sample of one of their copyrighted works and use it to create something new. I think they’re wrong. But I also think they’re doing the equivalent of putting a billboard on my front lawn when they put their advertising in that new creation of mine. And I think that’s wrong too.

[I]n real life there is likely to be not just one answer to a client’s problem but a whole range of possible answers, some of which are clearly wrong, but many of which are at least plausibly right, in varying degrees. Living with ambivalence and uncertainty is not always pleasant, but the ability to do so is surely a more necessary lawyering skill than mastering the niceties of citation form.

Some lawyers and clients, however, abuse this gap between law and behavior. I am not referring to the everyday, harmless disregard of the “rules.” How often do you obey the speed limit? But, as Judge Richard Posner writes, this “dichotomy long noted by legal thinkers between the law on the books and the law in action” is a particular problem in copyright law. Often the mere threat of an infringement action can extract money from someone using copyrighted material in a legitimate way. The problem, of course is exacerbated considerably because the copyrights to so much of our media are owned by corporate conglomerates. Who is going to fight Disney, even if he’s right? Another problem is the widespread ignorance in the media about copyright. As Posner writes:

The result is a systematic overclaiming of copyright, resulting in a misunderstanding of copyright’s breadth. Look at the copyright page in virtually any book, or the copyright notice at the beginning of a DVD or VHS film recording. The notice will almost always state that no part of the work can be reproduced without the publisher’s (or movie studio’s) permission. This is a flat denial of fair use. The reader or viewer who thumbs his nose at the copyright notice risks receiving a threatening letter from the copyright owner. He doesn’t know whether he will be sued, and because the fair use doctrine is vague, he may not be altogether confident about the outcome of the suit. The would-be fair user is likely to be an author, movie director, etc. and he will find that his publisher or studio is a strict copyright policeman. That is, since a publisher worries about expansive fair uses of the books he publishes, he doesn’t want to encourage such uses by permitting his own authors to copy from other publishers’ works. So you have a whole “law in action” law invented by publishers, including ridiculous rules such as that any quotation of more than two lines of a poem requires a copyright license.

Universal Music recently was, at least for the moment, slapped down in a particularly absurd instance of copyright overclaiming. Universal sought to remove Stephanie Lenz’s 29 second video of her son dancing to Prince’s “Let’s Go Crazy” from YouTube via a takedown notice under the Digital Millennium Copyright Act (the “DMCA”). Lenz in turn sued Universal on the grounds that in sending the takedown notice Universal knowingly misrepresented that Lenz’s video was infringing. Remarkably, Universal argued that a copyright holder need not consider whether the use of copyrighted material is legitimate fair use before sending a takedown notice. The DMCA provides, however, that a copyright owner can send a takedown notice only if he has “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” If use of copyrighted material constitutes fair use, it is “authorized by the law.” And there is no question that determining fair use can be a difficult and complicated determination. But not in not in Stephanie Lenz’s case — here’s the “offending” video:

Thus, it should be no surprise that U.S. Federal District Court Judge Jeremy Fogel rejected Universal’s argument that, before sending a takedown notice to YouTube, it did not need to even consider whether the presence of Prince’s “Let’s Go Crazy” in the video was a fair use . Accordingly, the judge refused to grant Universal’s motion to dismiss Lenz’s case. In his decision (pdf), Judge Fogel wrote:

An allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim pursuant to . . . the DMCA. Such an interpretation of the DMCA furthers both the purposes of the DMCA itself and copyright law in general. In enacting the DMCA, Congress noted that the “provisions in the bill balance the need for rapid response to potential infringement with the end-users [sic] legitimate interests in not having material removed without recourse.”

Not everyone has the guts of Stephanie Lenz. That’s a problem. The Universals of this world have all the money. Recently, the Electronic Frontier Foundation noted that another “federal judge denied copyright infringement allegations from Universal . . . affirming an eBay seller’s right to resell promotional CDs that he buys from secondhand stores.”

I am saddened to report that William Patry has, after 4 years, ended his Patry Copyright Blog.  There are several reasons for my sadness.  First, Mr. Patry is a wonderful writer, a creative thinker, and one of the leading authorities, if not the leading one, in the field of copyright.  His multi-volume treatise, Patry on Copyright, has instantly become the authority in the field, not only because of his expertise, but also because it is the first comprehensive treatise on copyright in 17 years.  And no one needs to be told that the last 17 years constitute an entire epoch in copyright law.

I am also saddened because Mr. Patry is a remarkably generous soul.  When, last February, I started a blog on copyright and fair use as a class project, I took a shot in the dark and wrote him to ask what he thought of the project.  I never expected to hear from him.  After all, he is Senior Copyright Counsel to Google.  I am way out of his league on the topics I planned to cover in the new blog.  Quite plainly, too, he is a very busy man. 

 Within minutes, however, he wrote me back, praising the project and welcoming my questions.  I tried not to abuse the invitation, but I did on several occasions write him and ask him for his reactions to things I wrote.  He was without exception gracious, generous, and, most wonderful of all, endlessly encouraging to me.  As he wrote, it is our human obligation to learn every single day.  He added that, in his 26 years of working in the field, there wasn’t a day he wasn’t amazed at how much more he had to learn.

That Mr. Patry also plugged my blog on his was just icing on the cake and instantly gave me credibility and attention I could never otherwise have expected.

It is a shame that Mr. Patry became viewed by some as a shill for Google.  He had a long and illustrious career in copyright long before joining Google and he made clear that the views he expressed on his blog were his own, not his employers.  Unfortunately, as he wrote in his last post:

There is nothing I can do to stop this false implication that I am speaking on Google’s behalf. And that’s just those who do so because they are lazy. Others, for partisan purposes, insist on on misdescribing the blog as a Google blog, or in one case involving a think tank, darkly indicating also a la Senator Joe McCarthy, that in addition to funding from Google, there may be other sources of funding too.

Saddest of all, Mr. Patry is in despair of the state of copyright law, which, in his view (as well as mine) has lost its purpose: to encourage and promote creativity.  He concludes his farewell as follows:

I regard myself as a centrist. I believe very much that in proper doses copyright is essential for certain classes of works, especially commercial movies, commercial sound recordings, and commercial books, the core copyright industries.  I accept that the level of proper doses will
vary from person to person and that my recommended dose may be lower (or higher) than others. But in my view . . . we are well past the healthy dose stage and into the serious illness stage. Much like the U.S. economy, things are getting worse, not better.

Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits from activity that not only causes no harm, but which is beneficial to copyright owners. Like Humpty-Dumpty, the copyright law we used to know can never be put back together again: multilateral and trade agreements have ensured that, and quite deliberately.

If Walt Disney Co. (NYSE: DIS) didn't still own the copyright to Mickey Mouse, Walt Disney (the artist, not the company) would never have had the incentive to create him, right?