MPAA Freaks Out: Insists That Having To Consider Fair Use Before Filing A DMCA Takedown Would Be Crazy

Oh, there go the wacky lawyers at the MPAA again. Last week we noted that a key fight may be shaping up concerning the contours of Section 512(f) of the DMCA -- the clause that is supposed to allow people to fight back against bogus DMCA takedowns. The details of the fight itself are pretty silly -- basically two angry bloggers fighting with each other -- but the underlying legal issue is of critical importance. As we've noted, to date, 512(f) has been rendered almost entirely toothless, such that tons of completely bogus DMCA notices are filed all the time, stifling free speech. Here was a case that might actually allow a 512(f) win, and provide some further basis for future responses to abusive DMCA takedowns. Is it really any surprise that the MPAA suddenly took notice of the case after the EFF filed an amicus brief? The MPAA had to step in and argue why it should be allowed to continued to file millions of DMCA takedowns without having to be that careful about bogus takedowns, because actually having to make sure a work is infringing would be too much work. So, the MPAA basically says, "we should be allowed to stifle free speech with no consequence because OMG PIRACY@!@!!" Yes, that's a paraphrase, but that's the crux of the MPAA's argument.

The MPAA respectfully submits that such an interpretation of § 512(f) is wrong and threatens to cause significant harms that Congress could not possibly have intended. The MPAA's interest in this matter is not academic. The MPAA and its members confront the piracy of their works by Internet actors on a massive global scale. One of the only means that the MPAA and its members have to ensure that Internet services that carry, host, or link to such content take steps not to facilitate such rampant piracy is through the DMCA's notice-and-takedown provisions. The rule that Plaintiff and Amici advocate, if carried to its logical conclusion, would impose significant and unwarranted burdens on copyright owners like the MPAA and its members who unfortunately must send literally millions of takedown notices every year to combat the mass infringement of their works on the Internet.

That's both wrong and ridiculous. It's not an "unwarranted burden" to ask DMCA filers to actually check to make sure a file is infringing. It's the whole freaking point. What's really going on here is that the MPAA is finally realizing that its now-common practice of hiring companies like DtecNet to send automated takedowns might run afoul of 512(f) because the computer programs aren't taking into account things like fair use. So, the basic point that the MPAA is making is silly and wrong. They're also flat out wrong on the law. The issue here, once again, is that the MPAA insists that fair use is only an "affirmative defense," and thus it has no reason to consider it before filing a DMCA takedown.

Fair use is an affirmative defense. It excuses conduct that otherwise is actionable as infringement, as the Supreme Court, the First Circuit, and numerous other courts and the Copyright Act’s legislative history have made clear.

But that is not what the law actually says. It does not say that it "excuses conduct that otherwise is actionable as infringement." Section 107 of the Copyright Act says:

... the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

This is important. The law does not say that this it is an infringement, but "excused." It says it is not an infringement. If it's not an infringement, then it means that the use is authorized. And that's the key to the whole issue here, because 512(f) says you can be liable for damages if you misrepresent "that material or activity is infringing." Infringing. Again, fair use is not infringing. So if it is a clear case of fair use (and we agree that not all cases of fair use are clear), then not considering fair use whereby one would recognize that the use is authorized, and still filing the DMCA takedown, would be a misrepresentation that the work is infringing. This isn't just me making this up. It's what the court said in the Stephanie Lenz case as well:

Here, the Court concludes that the plain meaning of “authorized by law” is unambiguous. An activity or behavior “authorized by law” is one permitted by law or not contrary to law. Though Congress did not expressly mention the fair use doctrine in the DMCA, the Co