2016 through the eyes of EFF: the fight for fair use and safe havens

The human rights organization Electronic Frontier Foundation (EFF) with its series of publications on digital rights in 2016 sums up the past year and talks about the most important and noteworthy events. One of the materials is devoted to reviewing court cases concerning fair use (fair use) of copyright objects and so-called “safe harbors” in relation to various Internet service providers. The text is about Google Books and Dancing Baby cases, recalling legal complaints about the Vimeo service and the Oracle v process. Google about Java API code. In a word, there is definitely something to remember about judicial confrontations overseas last year.

In 2016, we witnessed the last piece in the ongoing struggle to shape copyright and determine who it serves - between the law, which respects and encourages innovation and freedom of speech, and that only serves the interests of major rightholders. This year we celebrated a series of victories in favor of fair use and “free harbors” on the Internet, while some important legal battles are still ahead.

Main standoff for fair use in Lenz v. Universal reached the Supreme Court

After 9 years of battles in lower courts, Stephanie Lenz, represented by the Electronic Frontier Foundation, took the fight to the US Supreme Court regarding fair use on the Internet. In August, Lenz filed a petition asking the Court to partially revoke the 2015 decision of the Court of Appeals for the Ninth Circuit of the United States, which undermines the guarantees for users provided by the DMCA.

In 2007, Lenz first filed a lawsuit, which later became known as the “Dancing Baby” case after her video on Youtube was removed as a result of a fictitious copyright infringement notice filed by Universal Music. The video of the plaintiff was a 29-second recording, reproducing her baby dancing in the kitchen under the barely audible song of Prince Let's Go Crazy in the background. Lenz said that Universal’s notice of violation of rights was definitely a case of abuse, which should not occur within the meaning of DMCA guarantees.

In 2015, the Ninth Circuit Court issued an important decision, determining that prior to submitting a notice of violation, the right holders should examine whether a possible violation is not a fair use. But the court also applied a fully subjective criterion, which, we fear, will be used as permission for content holders to “rely no more than unsubstantiated conjectures or subjective criteria that are simply made up. [.]” We do not think that this is exactly what implied Congress, and Lenz asked the Supreme Court to protect the rights of users to fair use and to cancel this part of the court decision.

The Supreme Court refused to revise the outcome of the case on fair use in the case of the service Google Books

In April, the Supreme Court rejected the Authors Guild ’s motion to revise the landmark decision of the Second District Court on fair use in a lawsuit surrounding Google Books. By rejecting this request, the Supreme Court upheld a significant victory in fair use and put an end to more than a decade of litigation.

The second district court ruled that the Google Books project is a very transformative, fair use of copyright objects, providing information to the public, access to which may not be when trying to use other means to do so. The court’s decision also confirmed that the main purpose of copyright is the need to serve the public by facilitating access to knowledge and the results of creativity, deciding that “the ultimate goal of copyright is to increase public knowledge and understanding ... Thus, although the authors are undoubtedly important beneficiaries with respect to copyright, but the ultimate beneficiary is the public, whose access to knowledge is guided by copyright through the payment of remuneration for authorship ”.

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Federal jury in Oracle v. Google acknowledged that the use of Java API by Google is fair use.

In May, the federal jury unanimously determined that the use of software code that is part of the Java API in the Android operating system was fair use. Following on the heels of a frustrating and dangerous decision of the Federal District Court of Appeal, according to which application programming interfaces (APIs) are protected by copyright, the fair use decision provides some level of protection against copyright infringement on innovations and interaction in software. But, as we said earlier , it would be much better if the US Court of Appeals for the Federal District recognized that the API is a system or method of work, and thus is not subject to copyright.

Oracle will appeal the decision to the US Court of Appeals, and we hope that this time the court will make the right decision and will uphold the jury's verdict.

The Court of Appeal confirmed that Vimeo is not obliged to track or investigate user downloads

In June of this year, responding to one of several recent attacks on “safe havens” provided by the DMCA for Internet proxies, the Second District Court ruled that the Vimeo online video service is not obliged to investigate or monitor users downloads for copyright infringement.

Capitol Records, a recording company, sued Vimeo in 2014, stating that the DMCA “safe harbors” do not apply to phonograms created before 1972 (which are not governed by federal copyright law) and that even if “safe harbors” are applicable, Vimeo has lost the right to use them due to the lack of verification of downloads for potential copyright infringement. The second district court completely dismissed the arguments of Capitol Records, noting that the “safe havens” clauses are applicable, and that Vimeo is not obliged to monitor users' downloads for violations. Thereby, the Second Circuit Court awarded a significant victory to users and online platforms in the ongoing confrontation regarding "safe havens".

If the decision were in favor of the other side, it would be a death for online competition and free speech. The obligation for platforms to keep track of all user content will impose a significant economic burden on small and non-commercial platforms and will almost certainly lead to excessive diligence in filtering and restricting online user activity.

The Court of Appeal gives music sampling a breath of fresh air in the VMG Salsoul v. Case. Ciccone

Judicial decision of the Ninth Circuit Court in the case of VMG Salsoul v. Ciccone that the “de minimis” doctrine in copyright law actually applied to the sampling of music was a belated departure from the 2005 decision of the Sixth District Court in the case of Bridgeport Music. In the Bridgeport case, the Sixth District Court ruled out the application of this doctrine for sound recording, creating music samples as a risky and expensive enterprise. This year, the Ninth Circuit Court gave back to music sampling a necessary breath of fresh air in the decision that Madonna’s use of the 23-second sample from the Salsoul Orchestra song was insignificant (“de minimis”) and, therefore, did not violate rights.

But 2016 was not only the year of some victories for users. For example, in the BMG v. A Cox Communications judge in the Eastern District of Virginia ruled that an Internet service provider can stop someone from accessing the Internet only on the basis of a claim of rights violation, or even lose their legal protections, which the provider cannot be found guilty of violating their rights. users. The EFF, together with Public Knowledge and Center for Democracy and Technology, presented a report in support of the appeal, asking the Fourth District Court to consider the importance of access to the Internet in everyday life when considering the situation where copyright requires the provider to stop providing Internet access.

We are pleased to see how some courts oppose the claims of right holders to form the right to serve their own interests. In 2017, we will continue to fight to make sure that copyright works for each of us.

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Note per.

1. The term “safe havens” in this article refers to provisions of US regulations (in particular, the Digital Millennium Copyright Act), which allow legal entities to avoid being held accountable if they perform certain actions.
2. Electronic Frontier Foundation (Electronic Frontier Foundation, abbr. EFF) is a human rights organization in the United States whose work is aimed at protecting the civil rights of users associated with the emergence, implementation and use of new information technologies.
3. Digital Millennium Copyright Act (abbr. DMCA, "The Copyright Act in the Digital Age") is a US law aimed at regulating copyright issues arising from the development of modern technologies for copying and disseminating information.
4. In 1972, legal provisions (the so-called Sound Recording Amendment of 1971) came into force in the United States, according to which the legal status of phonograms as objects of related rights was regulated by federal law, and not by state law. The provisions of this act are applicable to objects created after its entry into force, so many phonograms (created up to this point) did not fall under its action. Read more about it here .
5. The “de minimis” doctrine is an approach where there was a formal violation, but it was too insignificant or too “not dangerous” for the right holder that the court has the right to reject the latter’s claims and not allow the plaintiff to protect the defendant’s intellectual rights. A discussion of the application of this doctrine can be found here .
6. Public Knowledge is an organization in the United States whose activities are aimed at ensuring freedom of speech, open Internet, access to communication and creative work.
7. Center for Democracy and Technology is a non-profit organization from Washington whose activities are aimed at freedom of speech, the confidentiality of users on the Internet and the tightening of legal control over state oversight bodies.