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David C.

Lowery
Terry College of Business
University of Georgia,
Brooks Hall
Athens, GA 30602-6254
March 31, 2016
Jacqueline  C.  Charlesworth  
General  Counsel  and  Associate  Register  of  Copyrights  
United  States  Copyright  Office  
101  Independence  Ave.  S.E.  
Washington,  D.C.  20559-­‐6000  
 
Re:    Section  512  Study  [Docket  2015-­‐7]  
 
Dear  General  Counsel  Charlesworth:  
My name is David Lowery. I am a founding member of the groups Cracker and Camper
Van Beethoven and a lecturer at the Terry School of Business at the University of
Georgia at Athens. Many of the albums my two bands have recorded over the years have
been released on my own label. I also write The Trichordist blog devoted to issues of
importance to independent artists and songwriters. I am filing this comment on my own
behalf from the perspective of an independent recording artist.
Thank you for the opportunity to comment on Section 512, the “notice and takedown”
process. I would argue that it has become patently obvious that what started with the
Congress as “notice and takedown” is better described as “notice and shakedown”. As
Beggars Group Chairman Martin Mills said in his Canadian Music Week keynote a
couple years ago:
The original intent was to protect reasonable people acting reasonably from
falling foul of the law, to enable the digital economy to grow without “ gotcha “
law suits against ISPs who had no idea that their networks were being used for
infringement. They were not intended to provide fortress walls behind which
companies could build billion dollar businesses on content that had not been
cleared. They were never intended to become a de facto “ license “.
To draw an offline analogy, these provisions would allow someone to burgle your
house and remove its contents, with their only risk being that if you caught them,
they’d have to return them – and maybe apologize. And then do it again. And
again. And again.

Nowhere is Mr. Mills’ point made more clearly than in the BMG Music Rights v. Cox
Communications case1 where Judge Liam O’Grady denied the safe harbor to an ISP that
had blatantly failed to comply with the repeat infringer policies required by the statute.
Anyone who has a passing acquaintance with reality knows that Judge O’Grady’s ruling
is both courageous and fundamental—what BMG proved was that Cox handled DMCA
notices in a cavalier fashion in a prime example of what Mr. Mills called the “de facto
license” or as some call it a “DMCA license” that neither complies with the Copyright
Act nor is a license. But it may as well be, particularly if like most independent artists
you can’t afford to file a lawsuit and use the force of law to extract the proof that
everyone knows is there.
And this is what I would like to draw to the Copyright Office’s attention. The notice and
takedown process was intended to be a low cost way for creators of all copyright
categories large and small to enforce their rights. Instead, it has become a battleground
between big tech companies and their surrogates (like the Electronic Frontier Foundation
that received over $1 million from Google2) getting rushed by an overwhelming number
of infringers with the artists the statute was intended to protect being pushed aside.
The is no better way to illuminate this story than to refer you to the bizarre ruling in Lenz
v. Universal Music Corp.,3 a case that appears to have been largely bankrolled by the
Electronic Frontier Foundation in furtherance of its obsessive hostility toward Universal4
with utter disregard for the lives of artists left in its wake.
As if it is not enough that YouTube is promoting to the general public that it will directly
bankroll litigation over “fair use”, the federal courts have interpreted the DMCA to
require that the artist sending a takedown notice “consider” fair use before sending their
notice:
The panel held that the DCMA requires copyright holders to consider fair use
before sending a takedown notification, and that failure to do so raises a triable
issue as to whether the copyright holder formed a subjective good faith belief that
the use was not authorized by law. Regarding good faith belief, the panel held that
the plaintiff could proceed under an actual knowledge theory. The panel held that
the willful blindness doctrine may be used to determine whether a copyright
                                                                                                               
1  BMG Rights Management (US) LLC V. Cox Communications, Inc., Civil No. 1:14-cv-1611 (U.S.D.C. E.
Dist. Va)  
2  Roger Parloff,  “Google and Facebook's new tactic in the tech wars”, FORTUNE (July 30, 2012) available
at http://fortune.com/2012/07/30/google-and-facebooks-new-tactic-in-the-tech-wars/  
3  Lenz v. Universal Music Corp. et al, Civil 5:07-cv-03783-JF Order and Amended Opinion (9th Cir.)
(March 17, 2016).  
4  “The first topic on which Lenz waived privilege had to do with her and EFF’s motives for pursuing the
case. She emailed a friend that EFF was “very, very interested in the case” and was “salivating over getting
their teeth into [Universal] yet again.” She also emailed her mother to explain that she ‘couldn’t say much,”
but EFF was planning a “publicity blitz and/or a lawsuit against Universal.’” “The Walls Have e-Ears”,
Foley & Lardner Intelligence Blog (May 19, 2011) available at https://www.foley.com/the-walls-have-eears-05-19-2011/  

 

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holder knowingly materially misrepresented that it held a good faith belief that the
offending activity was not a fair use.
The Court goes on to an extremely technical discussion of the difference between an
affirmative defense and a plain old defense:
Regardless of how fair use is viewed, it is clear that the burden of proving fair use
is always on the putative infringer….Fair use is therefore distinct from affirmative
defenses where a use infringes a copyright, but there is no liability due to a valid
excuse, e.g., misuse of a copyright.
And then the Court held this:
To be clear, if a copyright holder ignores or neglects our unequivocal holding that
it must consider fair use before sending a takedown notification, it is liable for
damages under § 512(f). If, however, 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…. In order to comply with the strictures of §
512(c)(3)(A)(v), a copyright holder’s consideration of fair use need not be
searching or intensive....We are mindful of the pressing crush of voluminous
infringing content that copyright holders face in a digital age. But that does not
excuse a failure to comply with the procedures outlined by Congress.
I really have only a hunch as to what the Court is requiring of me, but what does seem
clear is that I need to hire a lawyer before I file a DMCA notice or run the risk that even
if I’m right, I’m wrong because I may have known that I didn’t know what I might have
known if I’d “considered” it longer. I will either be taken down by the known unknowns
or the unknown unknowns that I should have known but couldn’t afford to hire a lawyer
to tell me I didn’t know them.
In reading the opinion of the Court, it is obvious to me that the Court has no idea of the
import of its decision for independent artists, photographers, authors, scrapbookers and
all of us who are not able to have our copyrights enforced by corporations on our behalf.
The court has essentially created a legal literacy test! This stands in stark contrast to the
intentions of Congress. The Congress pretty clearly intended to have the notice and
takedown process be an inexpensive remedy for all kinds of copyright owners to enforce
their rights.
On the one hand the Court acknowledges the burden placed on us by companies like
YouTube, but on the other hand exponentially increases that burden by essentially
requiring all of us to get a legal opinion on fair use (which is either an affirmative
defense, a regular defense, or a right) before we send a takedown notice.
This bizarre reading of the Copyright Act further enshrines the “notice and shakedown”
DMCA “license” best described by YouTube founder Steve Chen in one of the few

 

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internal YouTube emails that Viacom was able to recover in its long-running litigation
against Google as reported by USA Today:
Viacom says Chen discussed in another instance how YouTube could handle a hot
news clip from CNN: “[I] really don’t see what will happen. what? someone from
cnn sees it? he happens to be someone with power? he happens to want to take it
down right away. he gets in touch with cnn legal. 2 weeks later, we get a cease &
desist [takedown] letter. we take the video down.”5
If the Congress really did intend for everyone sending a takedown notice to have it vetted
by a lawyer to see if, in that lawyer’s opinion (and good luck getting that in writing), the
infringer might be able to successfully argue fair use at some point in the theoretical
future in a theoretical lawsuit at which point—if it ever comes to pass—the infringement
wouldn’t be an infringement because it would have been legally proven to be fair use
which means there should never have been a takedown notice in the first place--then
what’s the point of having notice and takedown in the first place?
Because what that really means is that YouTube gets to keep driving traffic to its website
and “monetizing” user-generated content under this tortured interpretation of the safe
harbors. Respectfully, if that’s what the Congress really intended, then why don’t they
just say outright that multinational tech companies and their surrogates always win and
suck it up?
I don’t think that’s what the Congress intended, but I can’t afford the million dollars in
legal fees to prove it. Maybe you can.
I appreciate the opportunity to express my views on the safe harbors and appreciate the
Copyright Office’s dedication to trying to get this right.
Sincerely,

David C. Lowery

                                                                                                               
5  “The Juicy Details Behind the Viacom-YouTube Lawsuit”, USA TODAY, available at
http://archive.wusa9.com/news/article/98844/189/the-juicy-details-behind-the-viacom-youtube-lawsuit

 

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