Senate Hearing Explores the Intersection of Fair Use and the DMCA: Part II

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[This post is the second of two covering this week’s Senate Subcommittee on IP hearing, titled”How Does the DMCA Contemplate Limitations and Exceptions Like Fair Use?”. For a summary of the first panel, click here.]

The second panel before the Senate Judiciary Subcommittee on Intellectual Property continued discussing the relationship between the DMCA’s notice-and-takedown system and fair use, with a focus on the use of copyrighted works by political campaigns-a particularly timely issue given ongoing disputes between various artists and the Trump campaign for its use of their music at campaign events and on social media.

Jaqueline Charlesworth, an attorney who represents songwriters and other artists, summed up the matter succinctly during her oral testimony. “Contrary to what some may believe,” she said, “there is no wholesale exception from ordinary rules of copyright for political uses.” In other words, a claim of fair use by a political campaign must undergo the same scrutiny that all other claims do, evaluated using the same four factors articulated in the statute and under the guidance set out by the Supreme Court in Campbell v. Acuff-Rose Music.

This analysis includes the question of whether the use of the copyright work is truly “transformative,” and as Charlesworth pointed out, simply attaching the song to a video is not transformative, whether done for use in a campaign or otherwise. “Although the song may have been transformed in a literal sense by being attached to a video,” she explains, “that does not make the taking ‘transformative’ for purposes of fair use analysis.” Instead, “the use of a copyrighted work must add new insight or meaning, or have some critical bearing on the original.” While acknowledging that politicians are no less entitled to the free speech protections afforded by the First Amendment, Charlesworth noted that we cannot forget that creators, too, are beneficiaries of those same rights: “When a song is taken and used by a campaign without permission, the creator’s message is appropriated and altered, and he or she is forced to participate in someone else’s speech, contrary to First Amendment values.”

Grammy-winning gospel artist Yolanda Adams opened her testimony by recognizing the late Congressman John Lewis, noting that his legacy brings to mind We Shall Overcome, the gospel song which became the rallying cry of the civil rights moment. “We need no further proof of the power of songs,” she said. Adams stressed the need for artists to be able to control what their creations are associated with. “Just work with us” and ask for permission, she implored. She explained that when a song becomes associated with a particular politician or cause, it can alienate a large chunk of an artist’s fanbase. Charlesworth added to this conversation, noting that such associations can also negatively impact future licensing opportunities because advertisers often shy away from songs linked to something divisive. She put it simply: “the unauthorized use devalues the song”-a point especially relevant to the fourth factor, which looks at whether the use impacts the value of, or existing or potential market for, the work used. “If someone’s claim of fair use reduces the artists’ ability to earn a living, it should be treated as infringement, plain and simple,” Adams said.

There was no direct counter-response to these statements. However, Matthew Sanderson of the Political Law Practice Group at the law firm Caplin & Drysdale, which advises campaigns on campaign finance rules and the like, claimed that campaigns often have to fend off DMCA notices and attempts to block use from artists who no longer own the songs in question, or for songs covered by public performance blanket licenses offered by performance rights associations like ASCAP and BMI. But Sanderson also spoke of the intellectual property rights of election and advocacy groups, which produce original content that is often infringed. He explained that these groups utilize takedown notices to combat unauthorized uses, but that they encounter a similar whack-a-mole problem described by many creators and copyright owners that frustrates their efforts to keep infringing content down. Sanderson made no policy recommendations, but advocated for additional education, arguing that the Copyright Office could do more to help artistic communities understand how copyright law plays out in the election context.

Rick Beato’s testimony did not focus on issues related to political campaigns, and he instead spoke more generally about fair use as applied to the DMCA. Beato operates a self-described educational YouTube channel, which consists of interviews, videos on music theory, film scoring, and analysis of the music elements of famous songs. He claimed that these videos, which often feature excepts of the songs discussed, are protected by fair use. However, he explained that his videos are often initially demonetized by YouTube because of its automatic filtering system that recognizes the copyrighted songs. When asked by Chairman Tillis whether he contests the claims against his videos, Beato said he has never sent a counternotice and that record companies often remove their initial notices anyway due to his large YouTube following. While it’s understandable that he would not have time to respond with counter notices to a large volume of takedown notices, it wasn’t clear why he has not (or would not) assert a fair use defense in response to takedowns that target some of his most popular videos most would agree are legitimate fair uses.

Beato went on to say that his concern lies with how smaller YouTube creators who make similar educational or critical content might have more difficulty dealing with these issues. “I believe the claim [against a particular video] was released because I have a channel with over one and a half million subscribers and hence have a platform to air these grievances. Creators with smaller audiences are not so fortunate.” To protect YouTube creators from what he called “frivolous demonetization,” Beato proposed the creation of a registry “where one could get a certification as a good actor similar to Twitter’s blue checkmark” and then “be whitelisted for use”-an idea that would run afoul of fact-specific nature of fair use determination, which would require analysis of the specific use rather than the nature of the user.

Joseph C. Gratz, an attorney who represents Internet companies on DMCA matters, went further by saying DMCA reforms advocated by creators, in particular the floated “notice-and-stay-down” system in which repeat infringers could be banned from uploading content to a site like YouTube, should not be considered. Gratz argued this is because algorithms or AI would have to be employed and that “machines can’t consider context.” He also expressed concern that filtering systems could be used to unjustly exile someone who has posted content that would fall under fair use in a court of law. Repeat infringer policies, he said, should not be made into “tools of censorship.”

Gratz also claimed that “DMCA abuse” by creators is a serious problem that needs to be addressed, arguing that creators who want to silence users that disagree with them or that simply do not understand copyright law are able to use the DMCA to block legitimate fair uses. To support this claim, Gratz cites the fact that 8% of notices filed against his client Automattic, the company that operates, were directed at content that did not actually infringe the notice sender’s copyright. While Gratz’s written testimony does not include a citation for the 8% figure, it’s worth noting that past studies funded by online service providers have made questionable claims about the number of notices directed at material that is non-infringing. The reality is that much of the content targeted is found in mashups, remixes, and covers-uses that are not inherently fair and should not be automatically assumed to be erroneously identified as unauthorized.

Charlesworth addressed notice and takedown from the perspective of individual artists, stating that the current DMCA system in fact places “unjust burdens” on small copyright owners who are “without adequate resources on hand” when others use their work without permission. She explained that simply using the DMCA to enforce one’s rights as intended by Congress can be exceedingly difficult in the digital age. Providing an example of unauthorized use of music in campaign activities, she told the story a client who created and owned a popular song and Ênoticed that it was being used in an political ad without his permission. YouTube deemed his takdedown notices insufficient and demanded further evidence of infringement not required under the DMCA. Only after this artist resorted to hiring Charlesworth, as well as a licensing administrator with access to YouTube’s ContentID system, was the ad finally removed. Had the campaign responded with a counternotice and made a broad fair use claim, which is not uncommon, the artist would have had to file a federal lawsuit within ten to fourteen business days to keep the ad from being reposted, which Charlesworth described as “an extraordinary burden that very few creators can manage or afford.”

Chairman Tillis’s final question was directed to Charlesworth and Gratz, asking whether recent expansions of the boundaries of fair use by courts have negatively affected copyright owners’ ability to protect their works. Charlesworth explained that courts have been confused over what type of use constitute a true “transformative purpose” and suggested courts must be more precise with how they characterize fair uses. She also recommended increased fair use education efforts by the Copyright Office. Gratz said that fair use accommodates changing culture and that notice senders and users need not feel constrained by recent district court fair use determinations-they only need to act in an objectionably reasonable manner in considering fair use.

While the question and answer session of the second panel was ultimately cut short due to a live vote, Chairman Tillis assured the panelists that he and Ranking Member Coons would be following up with additional written questions for the record.

Photo Credit: rfranca/iStock

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