George Mason University Antonin Scalia Law School

Senate IP Subcommittee Hearing Addresses Intersection of DMCA and Fair Use

The following post comes from Yumi Oda, an LLM Candidate at Scalia Law and a Research Assistant at CPIP.

U.S. Capitol buildingBy Yumi Oda

As part of its year-long review of the Digital Millennium Copyright Act (DMCA), the Senate Subcommittee on Intellectual Property tackled yet another contentious issue in our copyright system—fair use. A virtual online hearing, held on July 28 and entitled How Does the DMCA Contemplate Limitations and Exceptions Like Fair Use?, focused on the role of fair use for digital platforms. Calling fair use “a bit of a touchy subject,” Chairman Thom Tillis (R-NC) specifically requested the witnesses’ input on how the original DMCA envisioned fair use and how the reform bill should address it. Ranking Member Chris Coons (D-DE) likewise emphasized the importance of striking a balance to “safeguard free speech and fair use, while also combating digital piracy and ensuring creators are fairly compensated.”

The panelists included: Sherwin Siy, Lead Public Policy Manager of Wikimedia Foundation; Mickey H. Osterreicher, General Counsel of National Press Photographers Association; Jane C. Ginsburg, Morton L. Janklow Professor of Literary and Artistic Property Law at Columbia University School of Law; Christopher Mohr, Vice President for Intellectual Property and General Counsel of Software and Information Industry Association (SIIA); Rick Beato, Songwriter, Producer, Engineer, and Educator; Yolanda Adams, GRAMMY Award-winning artist and Recording Academy Trustee; Joseph C. Gratz, Partner of Durie Tangri LLP; Matthew Sanderson, Co-lead, Political Law Group of Caplin & Drysdale; and Jacqueline Charlesworth, Partner of Alter, Kendrick & Baron LLP. These panelists represented industry and scholarly experts, as well as creators, users, and intermediaries of copyrighted works.

As a limitation to the exclusive rights in creative works, fair use is intended to simultaneously promote free speech and foster authorship and creativity. Taking a hint from case law, Congress codified Section 107 of the Copyright Act, enumerating four factors to be considered in a fair use analysis, namely: (1) the purpose and character of the use, including whether such use is commercial or educational; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. However, since these factors are neither dispositive nor exhaustive, courts typically explore fair use claims in an open-ended, case-by-case manner.

On the first panel, Mr. Siy, representing the host of Wikipedia and Wikimedia Commons, testified that his Foundation heavily relies on fair use and the DMCA’s safe harbor provisions. Mr. Siy asserted that his Foundation receives approximately 30 DMCA takedown notices annually as risk-averse volunteers remove seemingly infringing content according to its volunteer-created standards, which are stricter than what the law requires. Of those notices, Mr. Siy explained, two-thirds are usually found to be noninfringing uses, such as fair use, thus demonstrating the ease of attacking harmless fair uses under the DMCA.

On the other hand, Mr. Osterreicher, representing visual journalists, pleaded with the Subcommittee to change the current lop-sided, whack-a-mole situation, which places an “insurmountable” burden on photographers, but “little to no responsibility” on online service providers (OSPs) for online infringement. As he pointed out, “the more amorphous the fair use interpretation the better” for OSPs to draw more visitors and advertisers. He argued that copyright infringement, sometimes disguised as fair use, reduces economic incentives, discourages participation in visual journalism, and “devalues photography as both a news medium and art form.”

Next, Prof. Ginsburg explained how Sections 512 and 1201 accommodate copyright limitations and exceptions. She noted that Section 512 has not worked as intended, largely due to the vastly higher number of postings than Congress originally anticipated. Conversely, the seemingly low number of counternotices, she continued, could suggest that “many fair uses are being suppressed,” “the vast majority of postings are in fact infringing,” or “fear or ignorance [are causing] some fair users to decline to send a counternotification.” As a potential solution to the timely counternotification procedure, Prof. Ginsburg proposed an alternative dispute resolution (ADR) mechanism. Moreover, she explained that “by design, [Section] 1201 does not provide a general fair use defense,” and that the triennial rulemakings to identify exempted classes of works have been largely effective.

Mr. Mohr, representing the software industry, provided the last testimony on this panel. He stated that Sections 512 and 1201 have been successful mainly because Congress left fair use out of both. Rather, he considered fair use as “a built-in safety valve” to preclude overly broad assertions of rights.

Senators Tillis and Coons then raised a series of specific questions. In response to a question regarding the extent to which OSPs should consider fair use, Prof. Ginsburg testified that OSPs have no duty to consider fair use and that they can remain mere conduits as long as they comply with the DMCA safe harbor provisions. Moreover, in response to a question regarding the misunderstanding surrounding fair use and newsworthiness, Mr. Osterreicher answered that there is a common misconception that newsworthy materials can be used more freely, which in turn deprives visual journalists of licensing opportunities due to the time-sensitive nature of such materials. Furthermore, in response to a question regarding the recent evolution of fair use, Prof. Ginsburg testified that broader fair use claims wrongly recognized in lower courts have been corrected by the higher courts, thereby demonstrating that courts are better equipped to analyze the inherently malleable fair use doctrine.

Lastly, each panelist was asked to specify which area of the DMCA Congress should look at in drafting a reform bill. Mr. Siy simply called for a holistic review. Mr. Osterreicher recommended clarifying the red flag knowledge standard for OSPs, and he pledged to continue advocating for the ADR system and the currently blocked Copyright Alternative in Small-Claims Enforcement (CASE) Act. Neither Prof. Ginsburg nor Mr. Mohr advocated for a legislative change, but Prof. Ginsburg did recommend that Congress closely monitor the development of the European Union’s approach to see if requiring OSPs to filter and block infringing content could reach a better balance.

On the second panel, witnesses testified how fair use has been applied in practice in their specific areas, many touching on the hot subject of political misappropriation. First to testify was Mr. Beato, a musician and popular YouTube music instructor who uses excerpts from famous songs in his videos. He explained that he never sought fair use claims in response to DMCA notices because it would be a waste of time and money, although he believed a good case could be made considering the new educational role YouTube has been playing. Although he himself successfully stood up against DMCA notices by a major label thanks to his large viewership, he warned that “frivolous” DMCA notices can be used to harass small content creators. Ultimately, he proposed a “Fair Use Registry,” similar to Twitter’s blue check mark, to certify and notate a good actor and to whitelist his or her use.

Another musician’s input came from Ms. Adams, a renowned gospel singer and songwriter who is also known as the “First Lady of Modern Gospel.” She maintained that “if someone’s claim of fair use reduces the artists’ ability to earn a living, it should be treated as infringement, plain and simple.” In addition to this monetization aspect of fair use, Ms. Adams also focused on its moral aspect, stating that “fair use can be very unfair to the artist if it takes our control away.” Reiterating the importance of the long-standing radio performance right issue, Ms. Adams concluded that seeking “permission” is the key when it comes to working with musicians, including use in political campaigns.

In contrast, Mr. Gratz, representing internet intermediaries, defended free speech and fair use, stating “nobody likes to be criticized or have their music used in ways they can’t control, but . . . even more so where the copyright holder does not like the use, fair use is needed to make sure that free expression can thrive even in the presence of copyrighted material.” Additionally, he made the following three points: (1) Section 512 has provided no practical remedy to the serious DMCA abuse; (2) automated filtering including any “staydown” systems should not be mandated; and (3) the current “reasonableness” standard for terminating repeat infringers is the right standard.

Similarly, Mr. Sanderson, who consults election and advocacy organizations, explained that political campaigns receive increasingly more takedown notices from artists who do not wish to be associated with the campaigns’ messages, even when the uses are permitted under performance rights organizations’ blanket licenses.

Finally, Ms. Charlesworth, an attorney representing songwriters and artists, reminded the Subcommittee that “creators, too, [as well as politicians,] are intended beneficiaries of the First Amendment.” She noted that creators’ messages can be appropriated and altered in political campaigns in ways that alienate fans and cause economic damages. Particularly, she argued that a fair use claim in a political campaign should also be analyzed under the regular four-factor test, with the emphasis on the first factor’s focus on whether the use is “transformative.” On this point, she explained that simply attaching a song to a political campaign video would not amount to a “transformative” use. Citing her clients’ experience, Ms. Charlesworth argued that “the current system imposes unjust burdens on creators and small copyright owners . . . without adequate tools or resources at hand when a political ad containing their song suddenly appears” online.

The second panel did not receive as many questions as the first one because the hearing was cut short by a live vote, but Senator Tillis concluded the hearing by thanking each panelist and acknowledging that some issues probably can be addressed without any legislative fix, while others may require congressional action.