Preventing fair use in an attempt to stop infringement

This might sound like a weird concept. Like making weapons illegal (knives, guns, everything that can be used to kill somebody) because someone might use them for the wrong purpose. Or like sending DMCA notices for all works containing copyrighted material even though some of them might be fair use (like the video from Lenz vs Universal). Or like protecting copyrighted material with software, and making it illegal to circumvent it even for educational and research purposes (oh, wait, that's already happening and perfectly legal).
Of course, there are huge differences between the exmples mentioned above, but it's hard to ignore the similarities. As weird as Universal's claim might sound (that they are not required to consider fair use before sending the DMCA notices), it is not hard to see where they are coming from. Effectively preventing fair use in an attempt to stop infringing has been happening for years under the DMCA. I am not trying to say that this is somehow wrong, but rather to draw an analogy and to explain why Universal's claim is not without a precedent.
So to be more precise, there is an obvious analogy between recording a video with copyrghted material in it and using it for fair use, and circumventing copyrght protection systems for educational and research purposes. But to understand how far the anaolgy goes, we need to know whether re-recording copyrighted material is considered circumventing its protection systems.
The copyright law states that to “circumvent a technological measure” means to "descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner" (here is the link). Did Lenz circumvent a technological measure? Well, she did re-record copyrighted material that probably had some protection. Did she have the right to do that? Maybe, after all it was fair use. Did Universal have the right to send a DMCA notice? Maybe, after all preventing fair use because of potential for infringement doesn't seem to go against the DMCA. So who is right? Probably those who call for laws less confusing than the current DMCA, and hopefully this is what will come out of the Lenz vs Universal case.

I hope I don't get a takedown notice for this...

What's going on legally?

On February 8, 2007, Stephanie Lenz uploaded a video of her dancing children to YouTube titled "Let's Go Crazy #1". In the video, you can hear a short, but poor quality, 20 second clip of Prince's song "Let's Go Crazy" playing in the background. By June 4, Universal (who owns the copyright to this song) tells YouTube to take it down because it violates the DMCA (In "Fair use gets a fair shake: YouTube tot to get day in court", Timothy B. Lee -- note: not Timothy Berners-Lee -- defines the Digital Millennium Copyright Act as a mechanism for copyright holders to demand the removal of infringing material on the web, but it also allows lawsuits against those who abuse that authority). Lenz, however, did not think that her video infringed Universal's copyright because of fair use according to the Copyright Act (The four factors used to determine fair use are listed below in Rali's post). As a result, Lenz re-uploads the video back onto YouTube and is now in court fighting Universal because she believes that Universal took down her video without a "good-faith belief" that it actually infringed a copyright. The Electronic Frontier Foundation is currently aiding Lenz in trial.

According to the law, in order to file a DMCA takedown notice, a copyright owner must provide 6 things:
1) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
2) Identification of the copyrighted work claimed to have been infringed
3) Identification of the material that is infringing the copyrighted work
4) An address, telephone number, email address, or other method of contact so that the service provider can reach the complaining party
5) A statement that the complaining party 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.
6) A statement that the information on the notification is accurate and that the complaining party is authorized to act on behalf of the owner of the copyrighted work

So according to this case, the matter being argued is whether or not Universal had a "good faith belief" that the use of Prince's material is not authorized by the law. Universal claims that they shouldn't even have to consider whether or not the "infringing" material is safe under the fair use doctrine until after they receive a counternotice from someone like Lenz. So the question now is whether or not Universal will be punished for a misrepresentation claim. Were they wrong to send a take-down notice for a video (that is obviously an example of fair use) before evaluating it? ie - did Universal Music file an improper takedown notice under the DMCA? So far, the Judge in this case has denied Universal's motion to dismiss. So we will have to wait and see if Lenz can prove that Universal acted with "bad faith".

Also, the legal ramifications for this case may involve Universal paying for financial and possibly even emotional losses (they say Lenz was too intimidated by Universal's notice that she hasn't posted a video on YouTube since this incident because she's afraid of losing her posting privileges) that Lenz acquired throughout this ordeal.

A Society on Lockdown?

That is essentially what the copyright situation could become if this case does not serve its purpose in defending the people's right of fair use of others' materials. It has been emphasized time and again that the video in question was a short, low-quality home video of primarily a dancing baby, who just happened to be dancing to a Prince song that viewers can identify only if they listen closely. This harmless video was served with a takedown notice and if the courts allow this kind of action to take place without repercussions for violating the fair use doctrine, then this could set a precedent for others to closely guard their copyrighted material. There would be no harm done in sending out excessive takedown notices so they have little to lose in case these notices are deemed inappropriate.

Right now on Youtube, there are millions of videos that use copyrighted materials in homemade videos. Just a simple search for 'Single Ladies' by Beyonce or 'Crank That' by Soulja Boy results in a countless number (probably too many) of these kinds of videos of people dancing to the songs. Some are amazing and may even impress the original artists themselves while others are atrocious and should never ever be viewed by anyone on Earth. But, ALL could be deemed as violations of copyright and served with takedown notices if this case is unable bolster fair use as it should.

Then our society could be transformed into one where people's ideas and work have the ultimate in exclusivity and there would be little in the way of building on or improving each other. People's freedoms, inspirations, and creativity would be limited to working only with original ideas and never derivations unless they were able to pay for or otherwise obtain a license. This would be far too strict of a society in terms of digital and intellectual property laws, a situation we most certainly want to avoid. If all those videos on Youtube ever have to come down, then where would students turn to for hours of time-wasting entertainment to avoid doing legitimate schoolwork? They would be forced to actually study, a scary scenario which we must prevent at all costs.

Lenz and College Students

So is a court case involving a video of a dancing baby relevant to the lives and morals of college students? Yes. College students are one of the populations who are most likely to fairly use copyrighted material, and also to infringe copyrighted material. They are also potential copyright holders, especially in the future. This dual position should cause them to consider issues of infringement of copyright and fair use more carefully: when considering whether to infringe a copyright or not or whether a use is fair, they should consider how they will feel in twenty years should they hold copyrights then, and then later on if they hold copyrights, they should make enforcement decisions while keeping in mind their perspective as college students.

College students use YouTube just like Stephanie Lenz, but they also post very large amounts of material on Facebook and other more student-oriented websites, and a large amount of this involves some copyrighted material. Background music in videos is not uncommon there, as is the use of song lyrics without permission. College students' activities run the spectrum from these obviously fair uses, taking small amounts of copyrighted material with no negative (perhaps, rather, a positive) effect on copyright holders' sales, to obviously unfair uses like BitTorrenting large numbers of pirated albums. These tendencies catapult fair use, including some very similar to that in Lenz v. Universal, into the list of ethical and legal considerations most relevant to college students.

Universal's moral problem

Most morally oriented discussions of intellectual property have focused on the responsibilities of the potential infringer. They address the question, "To what extent does one have a responsibility to refrain from using others' ideas (or expressions of ideas) without permission?" and chastise those who seem to flout this responsibility. This case, however, brings up a different question in addition to this one: "To what extent does one have a moral responsibility to not interfere with others' legitimate use of one's ideas?" In other words, how careful should a copyright holder be about not unfairly using copyright law?

Several moral perspectives may be invoked to answer this question. Let us begin with the utilitarian perspective. A copyright holder's suppression of fair use has negative social consequences in the form of society not receiving the benefits of the creativity that was fairly using the copyrighted work. To justify suppressing it, the copyright holder must provide some social benefit. In the case of Lenz v. Universal, there does not seem to be any, neglecting the far-fetched argument that Universal's sales are threatened (this would disqualify the video as "fair use"). The only utilitarian justification that might be relevant is the benefit of copyright holders not having to take the time to evaluate cases for fair use. However, this is a very questionable argument for the clear-cut cases like Lenz's, so utilitarianism seems to favor Lenz's argument.

An argument based on Kant's categorical imperative--i.e. the "What if everyone did it?" argument--also heavily favors restraint by copyright holders in cases of fair use. If all copyright holders tried to suppress fair uses, the chilling effect as well as the bureaucratic mess would be enormous. Prince's desire to send takedown notices for fair-use-covered videos to YouTube is of limited effect, but if all artists did this, YouTube and other online media would suffer in quality as innocuous videos with minor fair uses of copyrighted material (e.g. background music) were removed; the courts would be tied up too.

Another well established method in moral issues is to look to ancient wisdom. In this case, the comparisons are likely to be somewhat indirect: fair use did not exist as a concept until after copyright, an Enlightenment invention, arose. Ancient and medieval thinkers would consider Universal's conduct utterly absurd and could not see how a sensible moral question could even be posed about it. However, this question could be related to older concepts. For example, it might be taken as the civil (as opposed to criminal) equivalent to a false accusation in criminal cases, albeit without the element of perjury. The Bible states that false accusers should receive the punishment the falsely accused would have received (Deuteronomy 19:19). Is it not just that Prince and Universal, who wanted Lenz to cease and desist with her fair use, should cease and desist their own faulty takedown notices that falsely allege infringement?

So it seems that a great deal of moral perspectives favor Lenz's point, at least in such clear-cut cases as these, placing a moral burden on Universal to avoid such specious takedown notices.

Some details about the Lenz vs Universal case and the video in question

In a recent case, Lenz vs Universal, the court had to decide "whether 17 U.S.C. § 512(c)(3)(A)(v) requires a copyright owner to consider the fair use doctrine in formulating 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.” Here are some details about the case:

Stephanie Lenz uploaded a video on YouTube of her children dancing to Prince's song "Lets' go crazy". Universal sent a DMCA notice to YouTube asking them to take down the video because it was violating copyright. Ms. Lenz claims that the notice was sent not because of any specific characteristics of the video in question, but "as a matter of principle" that Prince "has the right to have his music removed". Contrary to this principle, in the case of "fair use", copyright owners don't have the right to have their music removed.

So was the video "fair use"?
According to the Copyright Act, in determining "fair use" four factors should be considered: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the whole work; (4) the effect of the use upon the market for the copyrighted work.
Here are some technical details about Ms. Lenz's video related to those factors:
(1) The video was intended for non-commercial personal use. It's just her children screaming and dancing to the song and has no real market value.
(3) The video is 29 seconds long, while the whole song is about 4 minutes (3:46). The music is playing in the background as Ms. Lenz is talking to her children. Due to the poor quality of the video and the interfering noises, the song is almost unrecognizable. According to the court, "The audible portion of the song includes the lyrics, "C'mon baby let's get nuts" and the song's distinctive guitar solo." We will have to take their word for that because it would be hard to actually recognize the lyrics from the video.
(4) Because of the reasons mentioned in (3), it is hard to believe that this video has the potential to influence the market for Prince's music in any way.

For these reasons, the video is obviously fair use, and that fact would have been obvious to whoever sent the DMCA notice. So the question is not whether or not this video constitutes fair use (because it obviously does) but rather whether Universal should have watched the video and considered the possibility that is was fair use before claiming that it was violating copyright. Universal claims that they were only required to do that after they received the counter-notice. According to the court decision, Universal were indeed required to consider the fair use doctrine before sending the notice. Whether they did that remains to be determined in court.

...With Liberty and Justice for All

Just as Greek philosophers contemplated the meaning of justice and emphasized its role in personal and societal ethics, the founding fathers of America believed that freedom and justice should be one of the cornerstones of their new nation. And in modern day nations, justice is ensured through the use of laws and the court system. However, there must be a balance between freedoms and laws because in most cases, freedoms end where the limits of the law begin.

This is precisely the case here in Lenz vs. Universal where the freedoms of fair use and the ability to create home videos for personal use tread the murky boundary with the law, the hand of justice, that prevents the stealing and inappropriate use of copyrighted material. So ethically speaking, which side is more justified in their argument? Laws exist to prevent injustices from occuring, but when viewed from an ethical and moral standpoint, did an injustice take place with Lenz's creation of the home video?

Normally when we think of stealing and taking another's property, the basic reasoning behind its wrongness is that the other person is losing something. Either the person being stolen from would no longer have that object which they still have a need for, or the original object would lose some of its potential value if a copy were taken. In this case, what does Prince or Universal lose?

Arguably nothing at all because they still hold the rights and the original song, and nobody who would have paid for either the song itself or the rights to that song would suddenly choose not to pay after seeing the video in question. The song is barely discernible in the background and the original intention of the video was for personal use only (for the entertainment of just family and friends). This video holds no legitimate market value that Universal can base its claim off of. If anything, viewers could be intrigued by that small chunk of song in the background, investigate, and ultimately decide to purchase the song or the album, leading to more revenue for Universal.

On the basis of ethics, there is no reason that the video should ever need to be taken down or violate any laws and on the basis of practicality, Universal should never have attacked it due to its potential for creating more revenue. With their reputation already damaged and legal action pending against them, Universal is now mired in a lose-lose situation.

What's fair anyway?

With the ongoing court case, Lenz vs. Universal, the main themes boil down to the issues of fair use and copyright infringement, or essentially, fairness versus stealing. The case itself arose as a result of the confusing and subjective principles in the DMCA and the fair use doctrine, which means it might be a good idea to define things clearly. So, let's start with a dictonary search: what is fairness and what is stealing?

Dictionary.com gives the following definition of fair:

1.	free from bias, dishonesty, or injustice: a fair decision; a fair judge.

2.	legitimately sought, pursued, done, given, etc.; proper under the rules: a fair fight.

...and this definition of steal:

1.	to take (the property of another or others) without permission or right, esp. secretly or by force: A pickpocket stole his watch.

2.	to appropriate (ideas, credit, words, etc.) without right or acknowledgment.

Unfortunately, these definitions are quite vague in and of themselves, which is not very helpful in helping to define the issues at hand. The definitions themselves rely on the 'right' to do something, 'the rules', and the concept of 'justice', which are all subjective terms that may change from person to person and situation to situation. Clearly, the dictionary has not gotten us any further in trying to elucidate this perplexing situation.

Perhaps a different approach is in order. Let's consider philosophy instead. The idea of 'justice' has been around for thousands of years, dating back to the first civilizations which chose to implement laws. Going back to ancient Greece, Plato was one of the first philosophers to write about justice as an overarching virtue of individuals and moral ethics has been one of the major areas of philosophical debate ever since.

Taking the views of generations of philosophers into account, how do the ideas of stealing and fairness as applied to the Lenz vs Universal case look when viewed in the context of general morality? But since philosophy is never simple or quick (and it's snowing and Monday classes have been canceled), I shall take my time to ponder and ruminate upon this issue and post again once I have reached a conclusion that would make Plato and Aristotle proud. Stay tuned...