By Tikwiza Nkowane|www.amdlawgroup.com Ever since Twitter used hashtags, the phenomenon took off with a storm and is not letting up. Businesses and individuals are now using this as a powerful...
Originally posted 2016-06-08 15:31:15.
By Tyler Train | www.amdlawgroup.com
Pop music icon and recently deceased recording artist Prince was well known for his legendary songwriting, epic guitar skills, and flamboyant fashion style but also for his relentless pursuit of copyright infringement. In 2007, Prince declared war on The Pirate Bay, a torrent based online music sharing website, and filed a lawsuit which ultimately led to a $3.6 million verdict and even jail time for the website’s operators. Prince had received public backlash on numerous occasions for attempting to takedown fan websites that use his image and likeness. In 2013, Prince’s label, NPG Records, Inc., issued a cease-and-desist letter to Twitter centered around eight vine videos that were “unauthorized recordings and unauthorized synchronizations,” which infringed on Prince’s copyrights. Twitter responded by quickly taking down each video. Just the following year, Prince filed a $22 million copyright infringement suit against nearly two-dozen bloggers and Facebook users who directed others to bootlegged recordings of his shows. The lawsuit drew a mixed reaction among fans and was dropped just days after it was filed.
Prince had also been a large advocate against artists covering his songs in the music industry. He was outspoken in his opposition to the compulsory license laws that make covering songs legal without gaining consent from the songwriter. When an artist covers a song, the artist is making a reproduction of the song and is required to obtain a mechanical license from the songwriter of the underlying work. Unlike obtaining licenses for public performances, however, mechanical licenses can be obtained for a set price of 9.1 cents per minute as determined by Congress. Therefore, an artist could cover and sell Prince’s entire discography at the pre-determined rate under compulsory licensing without ever communicating with Prince or his representatives, yet could not publically perform any of these covers without directly obtaining permission from Prince’s representatives. Prince claims that his issue with covers is not financial but rather an issue of accreditation and identity, both acknowledged theories underlying copyright law. In an interview on the George Lopez Show, Prince explained:
“I don’t mind fans singing the songs… My problem is when the industry “covers” the music. See covering the music means that your version doesn’t exist anymore. A lot of times, people think that I’m doing Sinead O’Connor’s song and Chaka Khan’s song when in fact I wrote those songs. And it’s okay when my friends ask to do them, but there’s this thing called the compulsory license law, which allows artists, through the record companies, to take your music, at will, without your permission. And that doesn’t exist in any other artform, be it books, movies — there’s only one version of “Law and Order.” There are several versions of “Kiss” and “Purple Rain.” ~ Prince on The George Lopez Show
Prince had even been accused of covering The Foo Fighter’s song “Best of You” in 2007 during his Superbowl halftime performance to get revenge on them for covering one of his songs.
The late artist’s most documented and ground-breaking instance of copyright infringement pursuit came during the infamous “Dancing Baby” case. In 2007, Prince was sued by a fan, Stephanie Lenz, after he ordered YouTube to remove a video that Lenz posted of her child dancing to Prince’s hit song “Let’s Go Crazy.” Lenz accused Prince of filing knowingly false claims against her, which restricted her First Amendment free speech rights. In 2015, the Ninth Circuit appeals court in California ruled in favor of Lenz saying that copyright owners can only send takedown notices if they’ve come to a good faith conclusion that the upload is not protected by fair use. The court invoked a previously rarely enforced Section 512(f) of the Digital Millennium Copyright Act (“DMCA”), which bars the improper use of the takedown procedure under the same act. In its ruling, the court provided:
Copyright holders cannot shirk their duty to consider — in good faith and prior to sending a takedown notification — whether allegedly infringing material constitutes fair use, a use which the DMCA plainly contemplates as authorized by the law . . . That this step imposes responsibility on copyright holders is not a reason for us to reject it.
Lenz said that the win provided a counterbalance to overly aggressive takedown notices, which trample on First Amendment rights and fair use. While this was a sweeping endorsement of the fair use doctrine, the court crafted their decision with critical limits. Lenz asked the court for immediate relief that, as a matter of law, Prince should have known that the video was protected by fair use. However, the court rejected this, instead ruling the rightsholders only need to form a subjective good-faith belief that the use was unauthorized infringement. The court wrote, “if a copyright holder forms a subjective good-faith belief the allegedly infringing material does not constitute fair use, we are in no position to dispute the copyright holder’s belief, even if we would have reached the opposite conclusion.” With this, the court refused to impose a reasonable objective standard of belief on copyright owners and instead granted broad leeway in what the owners consider to be fair use. The court reasoned that it was, “mindful of the pressing crush of voluminous infringing content that copyright holders face in a digital age.” In their decision, they went as far as expressly authorizing the use of automated copyright policing techniques saying that, “computer algorithms appear 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 that the procedure in considering fair use, “need not be searching or intensive.” As of now, Lenz has only been awarded nominal damages with a decision that the case must be presented to a jury to decide further damages and attorney’s fees. Both sides appealed the middle-of-the-road ruling, with Lenz asking for an objectively reasonable standard to be imposed on rightsholders who issue takedown notices. “Stephanie Lenz respectfully petitions the court for rehearing en banc to address a question of exceptional importance: whether Congress . . . intended to grant private parties the practical power to censor speech based on an unreasonable belief that a copyright has been infringed.” Lenz went on to warn that, “someone under the misimpression that his name is copyrighted could demand takedown of any online criticism, free from consequences for this unreasonable ignorance of the law.” Google and Twitter even offered support to Lenz by submitting amicus briefs to the court urging more protection of fair use for online uploads. Prince and his label Universal Music Group responded with their own petition stating:
Although Lenz’s video initially was taken down, Lenz had her video reinstated prior to filing this suit and without cost to her through the ‘put-back’ procedure that Congress provided . . . With no concrete injury personal to her that a court can redress, Lenz fails to present a case or controversy that this court has jurisdiction to hear under Article III.
On March 17, 2016, one month before Prince’s death, the Ninth Circuit court declined petitions to rehear the case. However, the court did amend the opinion by omitting the passage containing the provision that that analysis need not be “searching or intensive” and that copyright owners could rely on “computer algorithms” to aid them in their analysis. Nine years after the case was filed there is still much ambiguity left on both sides of the matter of what level of consideration of fair use is sufficient before issuing a takedown notice.
Image Credit: Author: affy4k