The Baby Dances On: A Win for Fair Use

Last week saw an important victory in the battle to protect the fair use of copyrighted material online. A Federal Appeals Court held in Lenz v. Universal that the DMCA requires rights holders to consider the important doctrine of ‘fair use’ before issuing a takedown notification. We submitted an amicus brief in this case, and are very pleased to see the court agree with many of our arguments.

Behold, the dancing baby that started the whole thing off:

The outcome of the case underlines and highlights the importance of fair use, and will hopefully cause copyright holders to pause and take the doctrine more seriously than many of them have done in the past.

In the words of the court:

Fair use is not just excused by the law, it is wholly authorized by the law.

This is critical. Sharing excerpts of articles, commenting on the news, and re-blogging portions of popular blog posts have become the lifeblood of the social internet, and important to the community we are building on WordPress.com. We have long fought to preserve legitimate rights to fair use, through the courts, through education of users and copyright holders and by pushing back on DMCA notices that target fair use on WordPress.com. In the last reporting period, we rejected 43% of notices for being either incomplete or abusive.

Our approach to honoring fair use is not meant to help our users to ‘get away’ with anything; we are defending their wholly legitimate rights from abuse. With that in mind, it is heartening to see that the 9th circuit agree with us: fair use is fundamental to copyright law, and all valid DMCA requests must give fair use due consideration.

Not the end of the story

Despite the importance of the decision, we shouldn’t be cracking out the champagne just yet. For one, we wish the court had taken the opportunity to provide a clearer, more objective standard for the consideration of fair use than they have. In our amicus brief we argued strongly for requiring complainants to form an objective belief that material in question was not fair use before submitting a takedown notification. The court relied instead on a subjective standard, that will be difficult to enforce, and provides less deterrent against the trampling of fair use rights.

Most of all, we hope the decision causes rights holders to take a closer look at their process for evaluating potential infringing activity, particularly those who make use of third party agents to send bulk automated takedowns. We have always believed that this process is nuanced, and requires some sort of human review to prevent abuse. We would like the Lenz decision to act as a catalyst for more thoughtful use of the DMCA’s notification and takedown process. There needs to be a recognition that simply finding a ‘matching’ file or text algorithmically does not signal the end of the investigation process, but just the beginning. This sentiment was expressed by Judge Smith in the opinion, who noted that while automated systems can be a useful tool for identifying the use of copyrighted material, that does not mean that they are capable of analyzing whether that use is fair, and therefore legal.

The battle to protect fair use isn’t over by a long shot, but for now – the baby dances on.

Read more over at the EFF.

Header image by Kjell Reigstad.

Defending Net Neutrality

Net neutrality – the principle that providers of internet service must treat all traffic equally – is a cornerstone of the free, open internet. This once-obscure principle has been in the news, as federal agencies, Congress, and even the President debated the proper scope of net neutrality regulations.

Automattic supports net neutrality. We recently joined our users to advocate strong net neutrality rules, and cheered the FCC’s decision to reclassify broadband service under Title II of the Communications Act; a decisive move that supplies a sturdy legal foundation for real net neutrality. Even with this victory, we knew the battle for net neutrality was far from over.

The ink was barely dry on the FCC’s rules when opponents of net neutrality rushed to court in an attempt to dismantle what we, and much of the internet, fought so hard to win. The fate of net neutrality is now in the hands of a Washington DC appeals court, and we’re now adding our voice the case.

Today, we filed an amicus brief with the Court of Appeals for the DC Circuit in the case of United States Telecom Assn. v. FCC (the full brief is below). We’re proud to be joined on the brief by five other leading internet companies: Medium, Reddit, Squarespace, Twitter, and Yelp. Our tools, along with many others, have helped make the internet a global engine of free expression. We deeply appreciate the critical role net neutrality plays in ensuring that speech and expression, on all platforms, is free from interference, throttling or blocking by the gatekeepers who provide access to the internet. Very simply: net neutrality is necessary for free speech to flourish online. On behalf of Automattic, and especially the millions who rely on WordPress to speak to the world, we submit our brief in support of strong, enforceable, net neutrality rules.

WordPress.com, and the WordPress open source project are living examples of what is possible on a neutral internet, open for creation, collaboration, and expression. We urge the court to consider our example, as well the voices of internet users worldwide, as it considers this important case.

 

Leave No Trace!

Earlier this year, we talked about the dangers of relying on third-party bots to chase down potential copyright infringement, and the ironic circumstances that ensue when the rights holder’s own content becomes a target. It’s a frustrating situation for everyone, but this kind of oversight is no surprise when automation is let off the leash. What’s even more shocking are cases in which this paradoxical level of enforcement is employed by humans, as we recently experienced with Subaru for America.

The car manufacturer is currently sponsoring a nonprofit organization, The Leave No Trace Center for Outdoor Ethics. For the uninitiated, “Leave No Trace” is the concept of enjoying the wilderness responsibly, with an eye towards conservation and preservation of natural beauty. A noble cause to be sure, but two WordPress.com users discovered the hard way that a corporation’s actions can sometimes speak louder than its words.

In the application for The Subaru Leave No Trace Traveling Trainer Program, it’s suggested that, among other things, applicants should be able to generate social media content via creating blogs, posting photos, and creating videos. This is exactly what Sam and Jenna attempted to do when they created this blog as part of their application process.

Surprisingly, however, Subaru was less than thrilled with this harmless use of the brand name, and accused our users of trademark infringement and cybersquatting. Apparently the legal department at Subaru wasn’t aware of their company’s sponsored initiative. Yikes!

We passed along the notice to Sam and Jenna with the understanding that we would not be taking any action against their blog as their content does not constitute trademark infringement. In good faith, though, our bloggers took the high road and removed most instances of ‘Subaru’ from their blog to appease the automaker’s demands.

While Subaru reminded us that it “aggressively protects its trademarks and other intangible assets,” it’s unfortunate in this case that they didn’t maintain that same level of overzealous enthusiasm for our users or the great outdoors.