The Trump Administration has finally weighed in on copyright, a subject as contentious*** as health care or immigration. On Thursday, the Acting Solicitor General advised the U.S. Supreme Court that even though a lower appeals court made a “significant legal error” in a dispute over a YouTube clip of a toddler dancing to Prince’s 1984 hit, “Let’s Go Crazy,” the high court should pass on a review.
The case focuses on whether Universal Music made a misrepresentation when issuing a takedown notice to YouTube. Representing the owner of video, mother Stephanie Lenz, the Electronic Frontier Foundation has been in court for about a decade on this issue. In September 2015, the 9th Circuit Court of Appeals ruled that copyright owners must consider fair use before sending takedowns, but wrote that if a copyright holder forms a subjective good faith belief that allegedly infringing material does not constitute fair use, that’s enough to shield the copyright holder from misrepresentation liability under the Digital Millennium Copyright Act. That left neither side truly happy, so petitions came from both for a high court review.
In late October, the Supreme Court asked for the Solitor General’s opinion on whether to hear the case. More than five months later (hardly a significant delay considering the change in political administration and the fact that the toddler in the YouTube video is almost in middle school), the briefing finally came from 11 attorneys in the Solicitor General’s office as well as the United States Copyright Office. If this amicus brief is any indication, the Trump Administration will be friendly to the entertainment industry’s attitudes on copyright, though hardly give copyright policy any high-priority status. Oh, and the Trump Administration unsurprisingly thinks that the 9th Circuit gets things wrong.
The brief (read here in full) features ample discussion on when a person acts “knowingly.” That’s not only important for the case at hand and a whole branch of philosophy, but is also an important factor on such matters as criminal law and whether media outlets can disclose Trump’s taxes. According to the Acting Solicitor General, to act “knowingly” requires “actual knowledge of the relevant facts” and excludes “mere negligence.” Additionally, “willful blindness” can add up to requisite knowledge, continues the brief; However, this has ‘limited scope” and “surpasses recklessness and negligence.”
What does this all mean in the context of a cute baby video?
Section 512(f) of the DMCA imposes liability on “any person who knowingly materially misrepresents … that material or activity is infringing.”
In the 9th Circuit’s opinion — as well as the EFF’s — that means that if a copyright owner sends a takedown notice without first conducting a “fair use” inquiry, the copyright holder may be held liable for the omission. The EFF went even further by arguing that copyright holders have to make a rigorous examination of the objective criteria when dealing with the four factors that govern fair use. The 9th Circuit disagreed, saying that if copyright owners form a subjective belief that material isn’t a fair use, who are judges to quarrel?
The Acting Solicitor General — Jeffrey Wall, who will soon transition to principal deputy solicitor general — thinks the formulation is all wrong to begin with.
His office’s brief agrees with the 9th Circuit that copyright owners “cannot be liable simply because an unknowing mistake is made, even if the copyright owner acted unreasonably in making the mistake,” but nevertheless asserts the appeals court erred by focusing on “the truth or falsity of [Universal’s] statement of good-faith belief, not (as Section 512(f) directs) on whether respondents had knowingly misrepresented petitioner’s video to be infringing.”
Although not conducting an analysis of fair use can rise to willful blindness, the brief opines, there’s still the question of whether the cute baby video violated the rights of the owner of “Let’s Go Crazy.”
As the brief puts it, “If [the baby-dancing-to-Prince] video did not actually constitute fair use, [Universal’s] statement that the video was infringing was not a ‘misrepresent[ation],’ whether or not [Universal] conducted any fair-use inquiry before sending their takedown notice.”
“The court of appeals’ analysis thus contains a significant legal error, and one that could give rise to unwarranted Section 512(f) liability in a case where the challenged material actually was infringing,” the brief continues. “The case does not provide a suitable vehicle for correcting that mistake, however, because the error potentially benefits petitioner and respondents have not sought review of that aspect of the court of appeals’ decision.”
The Acting Solicitor General adds that the 9th Circuit decision is interlocutory (meaning before a trial and final judgment) and litigated on a “mistaken assumption.” One can bet that the Trump Administration would rather the high court take up a stay of its immigration ban.
(***only subjectively untrue)