Pete Bouchard and the Battle Against Bogus Takedowns

I'm not one for local news broadcasts. When I do watch, it's to enjoy the unintentional humor brilliantly parodied by those like the Onion News Network. But WHDH-TV's Pete Bouchard recently made me reconsider the comedic opportunities of local news, delivering an instant classic one-liner that quickly found its way onto YouTube.

During an on-air forecast last month, Bouchard said: "Picking up some snow are we? Yes we are. In Princeton we picked up 9 inches of snow and in Billerica we had 7." Then, delivered with a pause and an eyebrow raise, Bouchard boldly stated, "The biggest amount I could find—almost as big as me—about 9 inches."

For a TV meteorologist to reveal his most private of measurements, would take, eh, balls. It's more likely, though far less funny, that WHDH's explanation is true. Still, finding the humor, I quickly posted the YouTube clip to my Facebook page. But before my friends could share in the laugh, a takedown message appeared where the original clip once did: "This video is no longer available due to a copyright claim by WHDH-TV." Apparently Channel 7 isn't interested in advertising the size of its weatherman's weather vane.

Fortunately others are, and the clip lives on. But, the fact that it was removed from YouTube at all is a frustrating lesson in the Digital Millennium Copyright Act. Under the DMCA's safe harbor provisions, websites are protected from copyright liability for hosting videos posted by users so long as they promptly remove the infringing material when notified by the copyright holder. WHDH didn't want its weatherman creating a storm, so as the copyright owner of the news program it could request that YouTube pull the video from its site.

The DMCA's notice-and-takedown mechanism puts the onus on the individual who posted the material to send a counter-notice asking that the material be put back up and usually raising some defense to copyright infringement, such as fair use.  In this case there's a fairly strong argument that the 27-second clip of Bouchard is fair. The amount of the original broadcast used is very small, the purpose of the clip is to spur public discussion, and there is arguably no effect on WHDH's news market. It's likely WHDH either didn't consider fair use before ordering the clip's takedown, or it simply didn't care.

Either way, this lack of concern for fair use is common: A music publisher tried to silence a critical podcast. A blogger sought to block an advocacy ad. Opponents of same-sex marriage looked to remove an unflattering YouTube clip. These and other "Takedown Hall of Shame" inductees likely think that it is difficult to punish a copyright holder for failing to consider fair use (it's hard to prove), and probably take comfort in the fact that many ordinary Internet users lack the knowledge, time, or resources necessary to challenge the takedown.

The Electronic Frontier Foundation has always been at the forefront of the effort to turn this situation around.  EFF tackles the problem both by training public attention on abusive takedown practices and through litigation aimed at recovering money damages and legal fees from bad actors. It looks like there might be a decisive ruling soon in the most high profile of this latter category of cases, Lenz v. Universal Music, which is pending in federal district court in California. 

The facts are probably familiar to most. EFF represents Stephanie Lenz, a Pennsylvania mom who created a video of her then-13-month-old son dancing to Prince's "Let's Go Crazy" in the kitchen of their home.  She uploaded it YouTube, and counsel for Universal music sent a takedown notice. Lenz got help from EFF, the video went back up, and she sued Universal for violation of 17 U.S.C. § 512(f), which creates liability for knowingly making false claims in a DMCA takedown notice or counter-notice.  The case is notable because, in August 2008, the court denied Universal's motion to dismiss the case, ruling that it had a duty to consider fair use before sending the takedown notice.

EFF is now asking the court to grant summary judgment in Lenz's favor, which would determine key issues in the case without the need to have a trial.  According to one press account, in a December hearing EFF told the court that Lenz is entitled to over $430,000 in legal fees and other damages. At that hearing, Federal District Judge Jeremy Fogel indicated that he would rule in January, so a decision may be coming any day. 

There is not a lot of precedent in this area (but see one of our favorites, Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195 (N.D. Cal. 2004)), but if Lenz's suit succeeds, a threat of damages would hang over every takedown notice, significantly altering the risks and incentives involved.  To me, requiring copyright owners to make a good-faith evaluation of fair use before shooting off a takedown notice seems like a reasonable check on the power of big content. But some commentators have expressed reservations. Although he supports EFF's effort, founder Bennett Haselton offers a couple counter-arguments: Small, independent artists would be deterred from issuing legitimate takedown notices if one mistake could levy a crushing damages award. Further, he writes, large attorney's fees don't just discourage frivolous lawsuits, but also non-frivolous suits in which there is a chance of losing.

To Haselton's points: The language of § 512(f) requires bad faith. The copyright holder must "knowingly materially" misrepresent the infringement claim before incurring liability. Judge Fogel's previous ruling made this point clear: it is the copyright owner's subjective belief that determines section 512(f) liability, not an objectively reasonable assessment of what fair use permits. If applied correctly, this rules out liability for honest mistakes, whether on the part of an independent artist or a big record company.  While this may help assuage the fears of content owners, it also means that it may be extremely difficult to win a § 512(f) case like Lenz's.

EFF, for its part, believes its claims against Universal have a good chance of succeeding. During the hearing in December, Universal argued that Lenz didn't suffer any economic loss in the case and isn't entitled to any damages. EFF countered: That's not the point. It's deterrence that's the goal.

We'll be keeping our eyes on this one. It's a cause that even Bouchard may appreciate. Among the pastimes listed in his video bio are woodworking and, yes, watching YouTube videos.

(Justin Silverman is a CMLP Legal Intern and a third-year evening student at Suffolk University Law School. Justin founded Suffolk's Media and Communications Law Society and in 2009.)

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