19 September 2015

Let's Go Crazy, Shall We?

Life has intervened (mostly in not-good ways, but that's sort of the price of life) for the last weekish — thus, this comment on Lenz is both overdue and less-well-researched than I would ordinarily put forth.

A few days ago, the Ninth Circuit decided Lenz v. Universal Music Corp., No. [20]13–16106 (9th Cir. 14 Sep 2015) — the "baby dancing to The Artist Formerly Known as 'The Artist Formerly Known as Prince'" case. This is a thoroughly messy case; about the only thing that the Court got right was the outcome. The reasoning in-between gets a C- on my Intellectual Property Controversies exam... and that only because it did reach a defensible result.

That defensible result was that the owner of a copyright must consider fair use prior to issuing a DMCA takedown notice, or it has failed to form the necessary "good faith belief" that the target material was an infringement of its copyrights. Bluntly, any holder that does not consider fair use before issuing a takedown notice is a bloody moron. This is something I've done since 1999, when I first started issuing notices... and have counselled clients to do for that entire period. That's because — apparently unlike the lawyers at Universal Music — I read the whole bloody statute before ever issuing a notice. And because unlike the vast majority of lawyers and legal assistants — even, and perhaps especially, those who deal with copyright as specific instances and not just broad proclamations of "what's good for my client is good for the country" — I'm pretty damned familiar with and respectful of the process and influence issues involved in the distributed arts. There is no excuse whatsoever for establishing an apparent policy (at least based on the summary of facts in both the Ninth Circuit and District Court opinions) that implements what the transferee-holder wishes the statute says, instead of what it actually says. There are, however, lots of explanations...

...and that leads to the first fundamental reasoning error in the opinion, and indeed by the parties. Nowhere does anyone acknowledge that the "real motivation" for UMC was to protect brand identity and identification, without any consultation of the actual creator. The usual way to understand this is to bounce the "market effect" factor for fair use (17 U.S.C. § 107) against the passing off/reverse passing off prohibition in the Lanham Act (15 U.S.C. § 1125(a)(1)(A)). That's right: Although the specific potential infringement is a copyright infringement, whether there is a viable defense depends upon noncopyright considerations. This reflects one of the disturbing overextensions of "copyright ownership" endemic among transferees via the endowment effect, as enforced by accounting goodwill calculations — the latter of which, thanks to MBA-think, dominate. If one completely misses the context, one probably misstates one's rationale... and this is primarily the lawyers' fault, even if the courts themselves should have called them on it. What we're dealing with here is more akin to a partial differential in a complex, interdependent, multivariate system (with significant lacunae and other discontinuities!) than a linear independent variable; no matter what the courts did with what was put in front of them, they could not reach a result that would reliably predict the outcome of other instances.

But leaving context aside for the moment (even though context really controls both the real-world and legal outcomes!), the parties gave the courts the opportunity for two separate doctrinal errors... and they obliged.

  • Fair use is a defense. The inelegant drafting of the Copyright Act and its fair use provision (that a fair use "is not an infringement") is largely irrelevant here; at a functional level, one need not consider fair use until all of the other elements of an infringement have been at least arguably demonstrated, making fair use a defense. Would one even consider the possibility of "fair use" absent a valid (if not necessarily sound or well-considered) possibility that a given reuse infringes? Further, one must consider what fair use does: It asserts a limit to the "exclusive right" granted to copyright holders, because that limit is necessary both under the First Amendment and itself for "Progress in the useful Arts." What makes this doctrinal error more embarassing is that the Supreme Court has already foreclosed the argument in 2Live Crew, proclaiming directly in reaching its ultimate holding that "Since fair use is an affirmative defense...." Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994), citing Harper & Row, Pubs. v. Nation Enters., 471 U.S. 539, 561 (1985). The Ninth Circuit's attempt to remove fair use from the panoply of "mere defenses" was, therefore, wrong, and is going to be cited out of context for a lot of rather predictable abuses.
  • Nonetheless, anticipating complete defenses is part of forming a good-faith belief. This is where the legal doctrine fundamentally fails to actually allow parties (these or others) to comport their conduct to the law's requirements. Since the song in question concerns going crazy, let's consider the insanity defense as a guide. Hannibal Lector would have had a complete defense under Maryland law (he dumped "Hester's" body in that storage unit in Baltimore) to a murder conviction, because Maryland treats "insanity" as a complete defense to criminal conduct. So, then: Would a prosecutor who persisted in pressing a capital case against Dr Lector, in the face of uncontroverted and convincing evidence that Dr Lector was at the time of the killing and continuing at the time of prosecution completely insane and unable to "conform [his] conduct to the requirements of the law," Md. Code Ann., Crim. Proc. § 3–109(a)(2), be proceeding in good faith? No matter the public outcry, both general ethics and the particular legal ethics rules applicable to prosecutors say no. The Court blew it by not focusing on this element, as opposed to the doctrinal box into which it tried (incorrectly) to shove fair use. (And my invocation of Hannibal Lector is, itself, fair use...)

At least, however, the Court saved its butt with the procedure it chose for remand. It could have made the further error of declaring an actual outcome; instead, Lenz sends the matter back for trial, because whether UMC considered fair use at all — let alone adequately — in forming its belief that Ms Lenz's short YouTube video of a baby dancing to, well, a dance tune (and a then-two-decade-old one at that!) infringed the copyright of a party for whom it was a transferee/agent (the record is unclear whether the copyright in the composition had been transferred to UMC, or only in the performance) was not uncontested in the record. This is becoming a distressingly common problem in copyright matters in the digital age — they are matters of civil procedure, and in particular of the limits of summary judgment under Fed. R. Civ. Proc. 56 rather than actual doctrine. Indeed, the contrast with the recent blurred yellow lines in the snow is itself instructive... as is that other DMCA cases decided by the Ninth Circuit (including Ellison) held that the respective District Courts had improperly failed to recognize triable issues of material fact and incorrectly granted summary judgment.

This leads to the next level of abstraction — the one that demonstrates why so many of these cases seem so ridiculous on reflection. The accounting rules relevant here demand bright-line-rule compliance. That gets imported into management imperatives, and further imported into management directives concerning related areas that are nonetheless outside the scope and intent of those bright-line rules. Conversely, many (not all, by any means!) members of the public also demand bright-line rules for what they may, and may not, do. But the arts by their nature are not consistent with bright-line rules, especially when those arts are (I hate to use this frequently misused term) transformed by intersection with daily life and unappreciative behavior. Because that's really what is at issue in Lenz: Not the mother's conduct in videorecording her baby and posting that baby video on YouTube, but the baby's interaction with a copyrighted artistic performance. This set of facts is about as clean as the baby's diaper... or at least as clean as it will be in the forseeable future...

The bottom line is that Lenz doesn't actually help anyone. It fails to acknowledge either process or motivation in "good faith"; it misstates legal doctrine in a way that will be cited out of context by others; it doesn't even provide a realistic guide to conduct other than "consider fair use" (with no real guidance on what that consideration must be... or the consequences if it's cursory and economically efficient, but objectively and indefensibly wrong, and probably performed by unqualified drones). Nobody benefits. That's at least as much the lawyers' fault — on both sides — as it is the courts; it's even more the litigants'/litigation backers' fault. And, in turn, that comes back to Congress's inexcusable inability to write a clear statute, or acknowledge that the statute does not exist in isolation.

It's just crazy.