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Why the 'Dancing Baby' copyright case is just hi-tech victim shaming

Want to be a Silicon Valley serf? Keep handing over those rights, rubes

Give your rights to The Man. No, not him, the other Man

Before we dive into the froth of excitement about Lenz, however, it's worth considering what easy access to the law means for ordinary Americans in practice.

If you share a picture of your children online and paedophiles or trolls then use that image on their site in a way you don't like, you don't need to call a lawyer. (This has happened.) The so-called "takedown and notice" provision arms the citizen with a lot of power: you should be able to file one in five minutes. The site can be made to disappear after a few hours if it ignores the request. Their upstream provider will pull the plug. Similarly, if you take a photo of a gay wedding and an opponent of gay marriage uses it, then you can also use takedown. (This has happened, too.) If a fascist group uses your song in its campaign material, the law is on your side again.

Takedown is a major pain for publishers (like us), but it's there for a reason. Asserting ownership is what stops the individual becoming economically powerless, just as in feudal society a serf could not choose where to work, or at what price: those decisions were made by the landowner. So with the power of instant publishing goes some responsibility to check you're not using or abusing other people's property. Nobody makes you use that, and the law sensibly makes limited exceptions for citation.

Importantly, you shouldn't need to be a copyright lawyer or Professor to know when a wrong has been done, as you fill in your five minute request.

Here's where victim shaming is used as a deterrent. When you fill out a DMCA takedown to Google, it threatens to make your personal information public. And it threatens dire consequences if you make a mistake. When users of Google's Orkut service discovered that pictures of their young children were being used for sexual innuendo, the parents were threatened with exposure on the Chilling Effects site. (Google only removed the pervs after The Register asked why it wasn't doing anything: the "anything" including its legal duty.)

The latest turn in the Dancing Baby case – and it will run and run – has caused excitement because it's apparently made it more difficult to issue a takedown. Activists say that what Lenz implies – and this has been widely misreported – is that anyone who even dares to think about issuing a takedown needs to consider a technical defence called "Fair Use". And this, they say, is scary and complicated, so you might as well not bother.

Already at least two Register commenters have called for individuals to file surety bonds before exercising their rights. This is all part of the victim shaming: turn the process of getting justice into an additional punishment.

(We'll leave aside for a moment whether the ruling actually says what activists think it says, and whether it will pass muster on further challenge.)

What we can piece together is that Lenz is a tactic in part of a broader strategy by Big Tech to make the takedown provision so confusing that nobody ever uses it. It has been used in parallel to another tactic: to broaden fair use. Fair use is not a "right" granted in US law – a right is a legally-enforceable claim. Fair use is not a right, it's a mitigation. It has been usefully described as a common sense "safety valve".

In a properly working internet, licensing becomes frictionless, easy to do and open to all, so we would expect the 'fair use' defence to diminish, as it would need to cover fewer and fewer things: "As transaction costs get lower and licensing becomes more convenient, non-transformative fair uses shrink," summed up Dr Lee Hollaar, a computer science professor and early internet pioneer who was one of the founders of the National Science Foundation Network (NSFnet).

Hollaar cites the saga following the Williams & Wilkins vs USA court case as a great example. Government libraries were copying medical articles without permission or paying for them, but they claimed a fair use defence because it was so difficult to pay for them each time they wanted to make a copy. Congress didn't want to issue a top-down blanket licence, so in Williams & Wilkins the court widened the scope of fair use to permit the copying. But four years later, the mutual parties established a copyright clearance centre at and the need for a court to stretch the meaning of fair was no longer required.


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