17 March 2016

We're Still Going Crazy

Just a quick update on a copyright matter covered here six months ago: Babies, craziness, bad faith, and the Internet all at once!

Today, the Ninth Circuit issued an amended panel opinion and denial of rehearing en banc (PDF) in Lenz — the video-of-baby-dancing-to-copyrighted-music case. The revised opinion really does nothing to change the bottom-line analysis, but nonetheless I maintain my skepticism of how he court reasoned its way to the diaper pail. As I said in September last (emphasis in original),

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.

This is, of course, nothing new. The problem remains — as always — that the statute was badly drafted in almost all particulars, primarily because the only outside parties that were listened to (or, in the case of § 512, even consulted directly during the drafting phase) were large-scale distributors and transferees who constitutionally are not the primary actors considered in the IP Clause. Instead, the statute was drafted with efficiency for those large intermediaries in mind, without real regard to either process issues or the interests of any other actor. This revised opinion, I'm afraid, does virtually nothing to meet these concerns, and instead gets saved by civil procedure: There was enough evidence to go either way, which made summary judgment either way inappropriate, so let's send it back down where the parties may be more amenable to settlement.

And it's still primarily counsels' fault.