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

Fair's fair, unless it's not fair

A paradox emerges (and remember, I did warn you about cognitive dissonance). Broader "fair use" doesn't lead to a fairer world: it can lead to the opposite – a much less fair world where the originator isn't acknowledged or compensated. A world where micropayments or plain old small payments are accrued somewhere for convenience is clearly "fairer" than uncompensated usage. The UK's copyright hub attempts to do that and there are many more similar projects underway. What we sniffily call micropayments can add up to a lot – especially if you live in India.

Yet for Big Tech and its Silicon Valley-funded activists in pressure groups and academia, fair use has become an end in itself. Silicon Valley has even managed to put the words into the mouths of uncomprehending foreign heads of state.

When David Cameron stood at Old Street Roundabout in 2010 and launched an enquiry into IP, he parroted the ideas that Google had prepared for him: did the UK need fair use? Cameron said he was disturbed by the idea, related to him him by Google, that the absence of a US-style fair use meant the UK could never create a Google or Facebook. It later transpired that the quote he referred to had never actually existed.

Later, the activist US-based law professor appointed by the Government to overhaul the laws admitted that fair use had been a smokescreen all along, diverting the energy and attention of opponents while the UK bureaucracy hacked away at other parts of copyright law, such as collectivising your photos.

But perhaps they should have been doing the opposite: banging heads together to get people do more mutually agreeable licensing? Alas, the US education system has now reared a generation of utopian activists who see any trade in digital "stuff" as fundamentally wicked and dirty, and who therefore see widening fair use interpretations as a good day's work.

Activist courts have tended to broaden the meaning of fair use over the years to such an extent, it covers almost anything... because the end justifies the method. For example, the generally understood concept of "author" was gutted of its meaning in the Google books case, which allowed Google to bypass ownership. Such is the consequence of teaching structuralism to Eng Lit undergrads, who then want to become lawyers.

The next steps for the Dancing Baby

On sober reading, it becomes apparent that the court said something quite different to what some people wish it had said. Automated takedowns are fine, it seems. Indeed, the court explicitly approves of them as a legitimate, fair-use-has-been-considered process: "We note, without passing judgment, that the implementation of computer algorithms appears to be a valid and good faith middle ground for processing a plethora of content while still meeting the DMCA’s requirements to somehow consider fair use."

And you don't actually need to call a lawyer to file a DMCA takedown. It doesn't care how you considered it, merely that you did. Your "consideration of fair use need not be searching or intensive. We follow Rossi’s guidance that formation of a subjective good faith belief does not require investigation of the allegedly infringing content," the court noted.

Jonathan Bailey at Plagiarism Today notes that: "In short, the fair use analysis doesn’t need to be accurate or even thorough. Rather, it just has to take place at some point... Even though the ruling does require that rightsholders consider fair use before sending off a notice, most likely, nearly all DMCA filers are meeting the requirements already."

The verdict could also be questionable, since the most attention-grabbing aspect is the "redefinition" of fair use. But fair use itself has not been redefined, and the Ninth District Court in Lenz relies on a highly selective and misleading quotation from a 1996 case. A Judge Birch is cited in a case referred to as Bateman (Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1542 n.22 (11th Cir. 1996)). Birch's words, quoted by the court this week, read as follows:

Given that 17 U.S.C. § 107 expressly authorises fair use, labelling it as an affirmative defence that excuses conduct is a misnomer: Although the traditional approach is to view “fair use” as an affirmative defense... it is better viewed as a right granted by the Copyright Act of 1976.

What's in the ellipsis? Birch's words “this writer, speaking only for himself”. Five years later the same judge had changed his mind: it's an affirmative defence, not a right.

Earlier this week the European Commission articulated disquiet with the current takedown regime – which doesn't seem to be working. Takedown doesn't mean staydown, because the exploitation is commercially valuable for internet companies and they won't use the filter technology they've developed. Nobody has yet compelled them to do so. In Lenz, the takedown should never have been filed, almost everyone agrees, because commercial arrangements should have been thrashed out.

Yet the case will run and run because even if Silicon Valley's shock troops at the EFF fail in all their legal objectives, the uncertainty created has huge value for Big Tech. It creates its own "chilling effect" – confusing and scaring individuals so they do not exercise their rights, thereby inconveniencing giant internet companies.

So it's hard not to conclude that intimidation, via victim shaming, is actually one of the real objectives. ®