No. 16-217
`In the Supreme Court of the United States
`
`STEPHANIE LENZ,
`
`Petitioner,
`
`v.
`UNIVERSAL MUSIC CORP., UNIVERSAL
`MUSIC PUBLISHING, INC. and UNIVERSAL
`MUSIC PUBLISHING GROUP,
`Respondents.
`
`On Petition for Writ of Certiorari
`to the United States Court of Appeals
`for the Ninth Circuit
`
`BRIEF OF THE ORGANIZATION FOR
`TRANSFORMATIVE WORKS AND PUBLIC
`KNOWLEDGE AS AMICI CURIAE IN SUPPORT OF
`THE PETITION
`
`Catherine R. Gellis
`Counsel of Record
`P.O. Box 2477
`Sausalito, CA 94966
`(202) 642-2849
`cathy@cgcounsel.com
`Counsel for amici curiae
`
`
`In the Supreme Court of the United States
`
`STEPHANIE LENZ,
`
`Petitioner,
`
`v.
`UNIVERSAL MUSIC CORP., UNIVERSAL
`MUSIC PUBLISHING, INC. and UNIVERSAL
`MUSIC PUBLISHING GROUP,
`Respondents.
`
`On Petition for Writ of Certiorari
`to the United States Court of Appeals
`for the Ninth Circuit
`
`BRIEF OF THE ORGANIZATION FOR
`TRANSFORMATIVE WORKS AND PUBLIC
`KNOWLEDGE AS AMICI CURIAE IN SUPPORT OF
`THE PETITION
`
`Catherine R. Gellis
`Counsel of Record
`P.O. Box 2477
`Sausalito, CA 94966
`(202) 642-2849
`cathy@cgcounsel.com
`Counsel for amici curiae
`
`
`
`TABLE OF CONTENTS
`TABLE OF AUTHORITIES . . . . . . . . . . . . . . ii
`INTEREST OF AMICI CURIAE . . . . . . . . . . . 1
`SUMMARY OF ARGUMENT . . . . . . . . . . . . . 2
`ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . 4
`I. Certiorari Is Necessary to Correct Ninth Cir-
`cuit Precedent that Puts the DMCA at Odds
`with Congress’s Intent to Encourage Online
`Speech, the First Amendment, and the Pur-
`poses of Copyright Law . . . . . . . . . . . . . . 4
`A. The
`Lax
`Standard
`Frustrates
`Congress’s Intent for the DMCA to
`Serve as a Tool to Protect Speech . . . . . . 5
`B. The Lax Standard Is Inconsistent with
`the First Amendment
`. . . . . . . . . . . . 8
`C. The Lax Standard Undermines the Pur-
`poses of Copyright Law . . . . . . . . . . . 12
`II. Certiorari Is Necessary to Finally Cure the
`Injury to Speech and Fair Uses the Lack of
`an Objective Good Faith Standard Inflicts . . 14
`A. Certiorari Should Be Granted in This
`Particular Case . . . . . . . . . . . . . . . 15
`B. Certiorari Should Be Granted to Stem
`the Tide of Illegitimate Takedown No-
`tices Targeting Free Speech and Fair
`Uses
`. . . . . . . . . . . . . . . . . . . . . 18
`CONCLUSION . . . . . . . . . . . . . . . . . . . . 23
`
`(i)
`
`
`
`TABLE OF AUTHORITIES
`
`Cases
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) . . . . . . . . . . . . . . . . 11
`Bantam Books, Inc. v. Sullivan,
`372 U.S. 58 (1963) . . . . . . . . . . . . . . . . . 10
`Bell Atlantic Corp. v. Twombly,
`550 U.S. 544 (2007) . . . . . . . . . . . . . . . . 11
`Brownmark Films, LLC v. Comedy Partners,
`682 F.3d 687 (7th Cir. 2012) . . . . . . . . . . . 11
`Carroll v. President & Commissioners of Princess
`Anne,
`393 U.S. 175 (1968) . . . . . . . . . . . . 12, 15, 22
`Elrod v. Burns,
`427 U.S. 347 (1976) . . . . . . . . . . . . . . . . 15
`Golan v. Holder,
`. . . . . . . . . . . . 2, 9, 13
`132 S. Ct. 873 (2012)
`Kirtsaeng v. John Wiley & Sons,
`136 S. Ct. 1979 (2016)
`. . . . . . . . . . . . . . 12
`McIntyre v. Ohio Elections Commission,
`514 U.S. 334 (1995) . . . . . . . . . . . . . . . . . 9
`Nebraska Press Ass’n v. Stuart,
`427 U.S. 539 (1976) . . . . . . . . . . . . . . 10, 22
`New York Times v. Sullivan,
`376 U.S. 254 (1964) . . . . . . . . . . . . . . . . . 8
`Perfect 10, Inc. v. CCBill LLC,
`488 F.3d 1102 (9th Cir. 2007)
`
`. . . . . . . . . . . 8
`
`(ii)
`
`
`
`(iii)
`
`Reno v. ACLU,
`521 U.S. 844 (1997) . . . . . . . . . . . . . . . . 13
`Rossi v. Motion Picture Ass’n,
`391 F.3d 1000 (9th Cir. 2004)
`UMG Recordings, Inc.
`v. Shelter Capital Partners LLC,
`718 F.3d 1006 (9th Cir. 2013)
`. . . . . . . . . 6–7
`United States
`v. Playboy Entertainment Group, Inc.,
`529 U.S. 803 (2000) . . . . . . . . . . . . . . . . 11
`
`. . . . . . . 4, 15–16
`
`Constitutional Provision
`
`U.S. Const. amend. 1 . . . . 2–4, 8–10, 12–13, 15, 22
`
`Statutes
`
`Digital Millennium Copyright Act (DMCA),
`17 U.S.C. § 512 . . . . . . . . . 2–4, 6–16, 20–22
`——— § 512(c)
`. . . . . . . . . . . . 2, 4, 9–10, 20
`——— § 512(c)(1)(C) . . . . . . . . . . . . . . . . 6
`——— § 512(e)(1) . . . . . . . . . . . . . . . . . 20
`——— § 512(f)
`. . . . . 2, 4, 8–10, 13, 15–16, 20
`——— § 512(g) . . . . . . . . . . . . . . 9, 16, 22
`——— § 512(m) . . . . . . . . . . . . . . . . . . . 7
`
`
`
`(iv)
`
`Other Sources
`
`Andy, Reddit Working on a Copyright Takedown
`Transparency Report, TorrentFreak (Apr. 1,
`2016), https://torrentfreak.com/reddit-working-
`on-a-copyright-takedown-transparency-report-
`160401/ . . . . . . . . . . . . . . . . . . . . . . . . . 19
`Comments of the Organization for Transforma-
`tive Works, Section 512 Study, 80 Fed. Reg.
`81862 (Copyright Office Apr. 1, 2016), avail-
`able at https://www.regulations.gov/document?
`D=COLC-2015-0013-86027 . . . . . . . . . . . . . 16
`Ctr. for Democracy & Tech., Campaign Take-
`down Troubles: How Meritless Copyright Claims
`Threaten Online Political Speech (2010), avail-
`able at https://www.cdt.org/files/pdfs/copyright_
`takedowns.pdf . . . . . . . . . . . . . . . . . . . . . 22
`Tim Cushing, Total Wipes Decides the Word
`‘Download’ Means Infringement, Issues DMCA
`Takedown Loaded with Non-Infringing URLs,
`Techdirt (Feb. 23, 2015), https://www.techdirt.
`com/articles/20150222/12492130106/total-wipes-
`decides - word - download - means - infringement -
`issues - dmca - takedown - loaded - with - non -
`infringing-urls.shtml
`. . . . . . . . . . . . . . . . . 19
`Peter Kafka, Veoh Finally Calls It Quits: Lay-
`offs Yesterday, Bankruptcy Filing Soon, CNet
`(Feb. 11, 2010), http://www.cnet.com/news/
`veoh - finally - calls - it - quits - layoffs - yesterday -
`bankruptcy-filing-soon/ . . . . . . . . . . . . . . . . . 6
`
`
`
`(v)
`
`Lumen Database (last accessed Sept. 13, 2016),
`https://lumendatabase.org/ . . . . . . . . . . . . . . 18
`Elizabeth Martin, Using Copyright to Remove
`Content: An Analysis of Garcia v. Google, 26 Ford-
`ham Intell. Prop. Media & Ent. L. 463 (2016) . . . 21
`Alex Pasternak, NASA’s Mars Rover Crashed
`Into a DMCA Takedown, Motherboard (Aug. 6,
`2012), http://motherboard.vice.com/blog/nasa-s-
`mars-rover-crashed-into-a-dmca-takedown . . . . 20
`Adam Rosenberg, ‘Pixels’ Copyright Notices Took
`Down the Studio’s Own Trailer, Mashable (Aug.
`9, 2015), http://mashable.com/2015/08/09/pixels-
`dmca/
`. . . . . . . . . . . . . . . . . . . . . . . . . . 20
`Matt Schruers, Observations on DMCA Reform
`and Notice & Takedown Abuse, Project Disco
`(May 23, 2013), http://www.project-disco.org/
`intellectual - property / 052313observations - on -
`dmca-reform-and-notice-takedown-abuse/
`. . . . . 21
`Section 512 of Title 17: Hearing Before the Sub-
`comm. on Courts, Intellectual Property, and the
`Internet of the H. Comm. on the Judiciary, 113th
`Cong. (2014) . . . . . . . . . . . . . . . . . . . . 21–22
`Daniel Seng, The State of the Discordant Union:
`An Empirical Analysis of DMCA Takedown No-
`tices, 18 Va. J.L. & Tech. 369 (2014)
`. . . . . . . . 19
`Daniel Seng,
`‘Who Watches the Watchmen?’
`An Empirical Analysis of Errors in DMCA
`Takedown Notices (Jan. 23, 2015)
`(unpub-
`lished manuscript), available at http://ssrn.com/
`abstract=2563202 . . . . . . . . . . . . . . . . . . . 19
`
`
`
`(vi)
`
`Joey-Elijah Sneddon, Ubuntu Torrent Removed
`from Google for ‘Infringing’ Transformers Movie,
`OMG! Ubuntu! (Sept. 12, 2016), http://www.
`omgubuntu.co.uk / 2016 / 09 / ubuntu - torrent -
`removed-google-infringing-transformers-movie . . 18
`S. Rep. No. 105-190 (1998) . . . . . . . . . . . . . . . 5
`Transparency Report: Frequently Asked Ques-
`tions, Google (last accessed Sept. 13, 2016),
`http: / / www.google.com / transparencyreport /
`removals / copyright / faq /#abusive _ copyright _
`requests
`. . . . . . . . . . . . . . . . . . . . . . . . 20
`Jennifer M. Urban et al., Notice and Takedown in
`Everyday Practice (2016), available at http://ssrn.
`com/abstract=2755628 . . . . . . . . . . . 7, 9, 19–20
`Warner Brothers Reports Own Site as Illegal,
`BBC News (Sept. 5, 2016), http://www.bbc.com/
`news/technology-37275603 . . . . . . . . . . . . . . 20
`
`
`
`INTEREST OF AMICI CURIAE
`The Organization for Transformative Works1 is a
`nonprofit organization dedicated to protecting and pre-
`serving noncommercial works created by fans based
`on existing works, including popular television shows,
`books, and movies. OTW’s “Archive of Our Own” also
`functions as a platform hosting transformative non-
`commercial works, supporting over 900,000 registered
`users and receiving upwards of 130 million page views
`per week.
`Public Knowledge is a non-profit organization that
`is dedicated to preserving the openness of the Internet
`and the public’s access to knowledge, promoting cre-
`ativity through balanced intellectual property rights,
`and upholding and protecting the rights of consumers
`to use innovative technology lawfully. Public Knowl-
`edge advocates on behalf of the public interest for a
`balanced copyright system, particularly with respect
`to new and emerging technologies.
`Amici curiae are collectively organizations that
`share the concern that review by this Court is neces-
`sary to keep speech and creativity from being chilled.
`
`1Pursuant to Supreme Court Rule 37.2(a), all parties received
`appropriate notice of and consented to the filing of this brief. Pur-
`suant to Rule 37.6, no counsel for a party authored this brief in
`whole or in part, and no counsel or party made a monetary con-
`tribution intended to fund the preparation or submission of the
`brief. No person or entity, other than amici, their members, or
`their counsel, made a monetary contribution to the preparation
`or submission of this brief.
`
`1
`
`
`
`SUMMARY OF ARGUMENT
`The petition here may come wrapped as a copyright
`case, but it is a case as much about free speech as
`any of the seminal free speech cases that have reached
`this Court before. Because the Ninth Circuit’s decision
`leads to a result inconsistent with this Court’s prior
`First Amendment holdings, review here is warranted.
`Copyright law must always be drawn within the
`bounds that the First Amendment permits. Golan v.
`Holder, 132 S. Ct. 873, 890 (2012). In enacting § 512
`of the Digital Millennium Copyright Act (“DMCA”),
`Congress sought to comply with these limitations
`through several speech-protecting provisions, includ-
`ing § 512(c) which requires that the sender of a take-
`down demand have a “good faith belief” that the tar-
`geted speech is not authorized “by the owner, its agent
`or the law,” and § 512(f), which allows those injured
`by illegitimate takedown demands of their speech to
`hold the senders of those demands accountable. These
`provisions mitigate the powerful effects of the DMCA,
`which essentially grant copyright owners an immedi-
`ate injunction removing challenged content without
`any need for independent judicial review.
`But the First Amendment requires more than ab-
`stract safeguards for free speech; it requires those safe-
`guards to have practical effect. Yet, as the dissent
`in the appellate decision explained, by requiring only
`a subjective, rather than objective, “good faith belief”
`the majority decision “eviscerates § 512(f) and leaves it
`toothless” against the frivolous speech-suppressing de-
`mands the DMCA’s notice-and-takedown system struc-
`turally invites.
`
`2
`
`
`
`3
`
`This case illustrates how lawful speech is now vul-
`nerable to the unchecked censorship that system en-
`ables, allowing a form of prior restraint that ordinar-
`ily would be anathema to the First Amendment. There
`are countless other examples, and there will yet be
`countless more if this Court does not grant review on
`certiorari.
`Only by doing so can this Court vindicate
`Congress’s intent to encourage online speech, the
`First Amendment interests of online speakers and
`the public, and the underlying purposes underpinning
`copyright law to “promote the progress of science and
`useful arts.” Amici urge this Court to grant certiorari
`and restore the balance the DMCA constitutionally
`requires.
`
`
`
`ARGUMENT
`I. Certiorari Is Necessary to Correct Ninth
`Circuit Precedent that Puts the DMCA at
`Odds with Congress’s Intent to Encourage
`Online Speech, the First Amendment, and
`the Purposes of Copyright Law
`The decision of the Court of Appeals raises signif-
`icant structural issues with how online expression in-
`teracts with the copyright statute. The specific issue
`is that court relied on its earlier holding in Rossi v.
`Motion Picture Ass’n, 391 F.3d 1000 (9th Cir. 2004),
`which held that a mere subjective good faith belief that
`targeted content was unauthorized “by the owner, its
`agent or the law,” was sufficient to support a takedown
`demand sent pursuant to § 512(c).
`By permitting a subjective good faith belief rather
`than requiring an objectively reasonable one, the
`Ninth Circuit effectively excised § 512(f) from the
`statute, making it all but impossible for people whose
`legitimate, non-infringing speech has been affected by
`invalid takedown demands to obtain a remedy for the
`harm this extra-judicial censorship inevitably and un-
`justifiably causes. Furthermore, by removing § 512(f)’s
`ability to provide a remedy to wronged speakers, the
`Ninth Circuit also removed its ability to deter those
`who would misuse the DMCA’s extraordinary power to
`cause others’ content to be wrongfully deleted.
`The functional effects of this lax standard are in-
`consistent with congressional intent, the First Amend-
`ment, and the purposes of copyright law. Certiorari
`should be granted to ensure that the DMCA can re-
`main consistent with all three.
`
`4
`
`
`
`5
`A. The Lax Standard Frustrates Congress’s
`Intent for the DMCA to Serve as a Tool to
`Protect Speech
`In the late 1990s Congress saw the potential of the
`Internet to unite people and ideas. It also recognized
`the critical role of Internet platforms in delivering this
`promise. Users rely upon platforms to access and use
`the Internet: they are what carry, store, and serve
`each speck of information online. Everything people
`communicate on the Internet exists on the Internet
`only because some site, server, or system has inter-
`mediated their communications so that the world can
`have access to them. Congress understood that if it
`wanted these intermediaries to remain available to fa-
`cilitate users’ expression, it needed to craft a law that
`ensured they had sufficient protection from litigation
`and liability with respect to that expression. S. Rep.
`No. 105-190, at 8 (1998) (“[B]y limiting the liability
`of service providers, the DMCA ensures that the effi-
`ciency of the Internet will continue to improve and that
`the variety and quality of services on the Internet will
`continue to expand.”).
`Congress offered intermediaries this shield to al-
`low them to continue to be ready and available facili-
`tators for the rich world of online content they enable.
`Id. at 1–2 (“The [DMCA] is designed to facilitate the
`robust development and world-wide expansion of elec-
`tronic commerce, communications, research, develop-
`ment, and education in the digital age.”). The survival
`of intermediaries is irrelevant, however, if all the con-
`tent they would facilitate is vulnerable to deletion de-
`mands by others.
`
`
`
`6
`
`The trouble arises because the DMCA makes plat-
`form protection conditional on platforms meeting cer-
`tain requirements,
`including the requirement that
`they “respond[] expeditiously to remove, or disable ac-
`cess to, the material that is claimed to be infring-
`ing or to be the subject of infringing activity” upon
`receiving notification of such claimed infringement.
`§ 512(c)(1)(C). Thus platforms find themselves in a
`paradoxical situation: in order to mitigate their legal
`risk so that they can exist as intermediaries, they must
`suppress some of that very speech they exist to inter-
`mediate.
`As a practical matter, platforms can, and some-
`times do, resist taking down content targeted by take-
`down notices that appear invalid, but there are several
`reasons why platforms should not be left to be the fi-
`nal arbiters of takedown notices. For one, platforms
`are disincentivized from rejecting takedown notices be-
`cause doing so would risk waiving the critical “safe har-
`bor” that protects them from ruinous legal costs, if not
`also crippling damages.2 The decision not to honor a
`notice is therefore not one a platform can make lightly.
`Platforms also generally lack the necessary infor-
`mation to know whether any particular content they
`host at the direction of users is authorized “by the
`owner, its agent or the law.” In questions of copyright,
`context matters: a literal copy is not inherently infring-
`ing. It is only infringing when made without authoriza-
`2In UMG Recordings, Inc. v. Shelter Capital Partners LLC,
`the platform was ultimately vindicated, but not before having
`been driven into bankruptcy and extinguished as a platform for
`users to share their content. See 718 F.3d 1006, 1024 (9th Cir.
`2013); Peter Kafka, Veoh Finally Calls It Quits: Layoffs Yesterday,
`Bankruptcy Filing Soon, CNet (Feb. 11, 2010), URL supra p. iv.
`
`
`
`7
`
`tion “by the owner, its agent or the law.” But this is
`information known only to takedown notice senders—
`not platforms. Thus the obligation to evaluate whether
`a takedown demand is warranted should rest entirely
`with the former.
`Furthermore, it can be unfeasible for platforms,
`particularly those that are smaller or individually run,
`to individually review takedown notices in any signifi-
`cant quantity. In addition to the resources such a re-
`view demands, smaller platforms may also lack the le-
`gal sophistication to even begin to evaluate a takedown
`notice’s legitimacy.3 But even for larger platforms,4
`which are subject to an even greater tidal wave of au-
`tomatic takedown notices, the burden of individual re-
`view can be equally unmanageable. See, e.g., Jennifer
`M. Urban et al., Notice and Takedown in Everyday
`Practice 10 (2016), available at URL supra p. vi (de-
`scribing a dataset of over 108 million takedown notices
`sent over a six-month period directed only to Google im-
`age search).
`Congress understood that requiring platforms to
`proactively police for infringing content would be
`tremendously burdensome. 17 U.S.C. § 512(m); see
`also Shelter Capital Partners, 718 F.3d at 1022 (citing
`
`3While Petitioner’s video was hosted on a large-scale commer-
`cial platform, platforms come in all shapes and sizes, hosting all
`sorts of material (text, video, pictures, sound), for all sorts of users
`hoping to reach all sorts of audiences. The DMCA applies to any
`and all platforms who comply with its requirements, regardless of
`whether they are run by public companies like Google, non-profit,
`volunteer-run organizations like OTW, or individuals who have
`coded their own websites.
`4Note also that “large” platforms in terms of usage, visitors, or
`prominence can also come with “small” back-end operations staff.
`
`
`
`8
`
`Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1113 (9th
`Cir. 2007) (“Congress made a considered policy deter-
`mination that the ‘DMCA . . . [would] place the bur-
`den of policing copyright infringement—identifying
`the potentially infringing material and adequately doc-
`umenting infringement—squarely on the owners of the
`copyright.’ ”)). But it is no less burdensome to require
`them to proactively police for fair use or other defenses
`of legitimate speech. When presented with a takedown
`demand they are likely to obey it in order to be able to
`survive as a host for any user content at all.
`This pressure for platforms to yield to every take-
`down demand they receive, no matter how invalid, puts
`them at odds with their users and undermines their
`ability to host the speech users look to them to interme-
`diate and that the DMCA was intended to foster. For
`the DMCA to achieve its purpose of stimulating speech
`rather than suppressing it, there has to be a statu-
`tory check upon takedown notice senders. Congress
`intended that check to be § 512(f), but that check must
`have teeth to allow the DMCA to be the sort of speech-
`facilitating statute Congress intended it to be. Certio-
`rari should therefore be granted to restore this critical
`deterrent.
`
`B. The Lax Standard Is Inconsistent with the
`First Amendment
`Congress could not have passed a law that would
`have undermined the First Amendment. The reach
`of any law must always be measured by standards
`that satisfy it. New York Times v. Sullivan, 376 U.S.
`254, 269 (1964) (describing how no law can claim “tal-
`ismanic immunity” from constitutional limitations).
`
`
`
`9
`
`the doctrine of fair
`Copyright law is no exception:
`use importantly ensures in part that copyright law re-
`mains consistent with those First Amendment princi-
`ples. Golan, 132 S. Ct. at 890.
`In creating the DMCA’s notice-and-takedown sys-
`tem, Congress did not intend to do violence to fair use
`and the critical speech interests it protects. In fact,
`Congress wrote into the statute several key provisions
`to guard against such a result. These provisions in-
`cluded § 512(c), which requires senders of takedown
`demands to have a “good faith belief” that the targeted
`material represented a use not authorized “by the copy-
`right owner, its agent, or the law,” and § 512(f), which
`then provides those injured by illegitimate takedown
`demands of their speech access to a remedy.5 But when
`courts do not enforce the sanction prescribed by § 512(f)
`to stop improper takedown demands directed at fair
`uses, then the law as a whole effectively ceases to com-
`port with constitutional mandates.
`The issue here is not that courts are refusing to en-
`tertain claims brought under § 512(f), but that by judg-
`ing the takedown notice sender’s “good faith belief” un-
`der a subjective, rather than objective, standard, it ef-
`fectively “eviscerates § 512(f) and leaves it toothless”
`
`5There is also a third provision, at § 512(g), which allows for
`deleted content to be “put back” online upon counter-notification
`by the affected speaker. However, in practice this provision pro-
`vides very little recourse for a speaker whose speech has been re-
`moved, and data suggests that it is little used. Urban et al., supra,
`at 44–46. Furthermore, forcing anonymous speakers to rely on
`§ 512(g), thereby unmasking themselves, puts the DMCA in se-
`rious tension, if not outright conflict, with the First Amendment,
`which explicitly includes a right to anonymous speech. McIntyre v.
`Ohio Elections Comm’n, 514 U.S. 334, 357 (1995).
`
`
`
`10
`
`against the frivolous censorship demands the DMCA’s
`notice-and-takedown system invites. Pet. Cert. 30–31
`(citing dissent).
`The trouble arises because by its very design the
`DMCA essentially functions as a system of extra-
`judicial injunctions on speech, deliberately sparing ag-
`grieved copyright holders from the cost and delay of
`having to seek content-removing injunctions from the
`courts. Such a system is truly extraordinary:
`in no
`other circumstance would we allow any law to enable,
`and indeed encourage, speech to be suppressed with-
`out judicial oversight. On the contrary, First Amend-
`ment jurisprudence ardently protects speech, partic-
`ularly against injunctions on untested claims. Neb.
`Press Ass’n v. Stuart, 427 U.S. 539, 562 (1976) (“Only
`after judgment has become final, correct or otherwise,
`does the law’s sanction become fully operative.”). Be-
`cause an injunction against speech constitutes a prior
`restraint if the court later finds the claim against it
`unmeritorious, such injunctions are greatly disfavored.
`Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963)
`(“Any system of prior restraints . . . bear[s] a heavy pre-
`sumption against its constitutional validity. We have
`tolerated such a system only where it operated under
`judicial superintendence and assured an almost imme-
`diate judicial determination of the validity of the re-
`straint.”) (internal citations omitted).
`In crafting the DMCA, Congress did not attempt
`to remove the courts from their position of oversight;
`rather, it switched the role of judicial review from ex
`ante to post hoc. Section 512(f) invites the review and
`§ 512(c) articulates the standard the review checks for.
`Yet without requiring anything more than a subjective
`
`
`
`11
`
`good faith belief nearly every specious belief can clear
`that hurdle.
`By not enforcing an objectively reasonable stan-
`dard, the DMCA’s notice-and-takedown system ends
`up empowering would-be censors to target content
`with an ease and efficiency they never would be permit-
`ted without it. If takedown notice senders were to sue
`for an injunction, they would ordinarily need to plead
`enough “factual content that allows the court to draw
`the reasonable inference that the defendant is liable
`for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
`662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550
`U.S. 544, 556 (2007)). Something more than a subjec-
`tive belief in the validity of the claim would necessarily
`be required, see id., even in the copyright context. See,
`e.g., Brownmark Films, LLC v. Comedy Partners, 682
`F.3d 687, 692 (7th Cir. 2012) (dismissing copyright in-
`fringement claim on a motion to dismiss, finding an
`“obvious case of fair use”).
`But the same is not true for a takedown notice so
`long as courts permit them to be predicated on a mere
`subjective good faith belief. As this Court has found,
`where liability lies on the line between unlawful and
`protected speech, an “[e]rror in marking that line ex-
`acts an extraordinary cost.” United States v. Playboy
`Entm’t Group, Inc., 529 U.S. 803, 817 (2000). Yet that
`is the error that the lesser standard invites. By not
`holding the infringement claims underpinning take-
`down notices to an objective standard, unmeritorious
`claims that would never survive judicial scrutiny nev-
`ertheless have injunctive effect on fair uses, with little
`risk of consequence to the party issuing even a baseless
`demand. Now relieved of both their procedural and
`
`
`
`12
`
`pleading burdens, as well as the cost, legal risk, and de-
`lay of a lawsuit, takedown notice senders instead have
`a clear path to censor others’ speech at will.
`Such a statutory interpretation puts the DMCA at
`odds with several constitutional tenets. “[A] noncrimi-
`nal process of prior restraints upon expression ‘avoids
`constitutional infirmity only if it takes place under pro-
`cedural safeguards designed to obviate the dangers of
`a censorship system.’ ” Carroll v. President & Comm’rs
`of Princess Anne, 393 U.S. 175, 181 (1968). Certiorari
`should therefore be granted to restore the effective pro-
`tections for online speech the Constitution requires.
`
`C. The Lax Standard Undermines the
`Purposes of Copyright Law
`As this Court recently observed in Kirtsaeng v.
`John Wiley & Sons when interpreting the meaning of
`a provision in the copyright statute, “[w]e must con-
`sider if [that interpretation] well advances the Copy-
`right Act’s goals.” 136 S. Ct. 1979, 1986 (2016).
`Those objectives are well settled. “Copyright law ul-
`timately serves the purpose of enriching the general
`public through access to creative works.” Kirtsaeng,
`136 S. Ct. at 1986 (internal cites omitted). “The statute
`achieves that end by striking a balance between two
`subsidiary aims: encouraging and rewarding authors’
`creations while also enabling others to build on that
`work.” Id. Certiorari should be granted here because
`of the degree to which the subjective good faith stan-
`dard distorts this critical balance.
`As discussed above, there should be no inherent
`tension between copyright and the First Amendment.
`They exist in parallel with the shared purpose of en-
`
`
`
`13
`
`couraging expression. Golan, 132 S. Ct. at 889–90.
`The DMCA, part of the Copyright Act, was similarly in-
`tended to create an environment where further speech
`could be fostered and made available online. Yet as
`long as the DMCA remains a tool of expedient censor-
`ship it will remain at odds with the purposes of copy-
`right law as much as it is at odds with the First Amend-
`ment.
`It is at odds because of how, rather than protecting
`more speech, it makes online speech even more vulner-
`able than it would have been offline, a result that flouts
`this Court’s prior precedent. Reno v. ACLU, 521 U.S.
`844, 870 (1997). In the offline context, where there is
`no DMCA, no one could so easily and costlessly cause
`speech to be censored by merely pointing at it and
`claiming an infringement. To enjoin infringing expres-
`sion they would need to draft a well-pleaded complaint
`sufficient to overcome the strong deference to speech
`protection that fair use and the First Amendment re-
`quire.6 Yet for speech that exists only online, there are
`no such hurdles obstructing would-be censors. In fact,
`not only are there no hurdles, but so long as the subjec-
`tive good faith standard is permitted to render § 512(f)
`ineffective at providing a remedy for unjust takedown
`demands, the statute effectively greases the wheels to
`make this sort of injunction unprecedentedly quicker,
`easier, and cheaper to achieve than it ever would have
`been in the offline world.
`The result of this grant of extraordinary power to
`copyright holders7 absent an effective check is to ren-
`
`6See Section I.B supra p. 8.
`7The DMCA grants the power to copyright holders, but it is
`a power that can be wielded equally by those who own no valid
`
`
`
`14
`
`der the notice-and-takedown regime of the DMCA in di-
`rect conflict with copyright’s purposes. Though it is of-
`ten said that copyright remedies are necessary in order
`to incentivize speech, these remedies now can squelch
`the very speech copyright law seeks to incentivize. On-
`line speech is expression that promotes the progress
`of the arts and sciences. Many online fair uses reflect
`the originality and authorship necessary to qualify for
`copyright protection itself. There is no principled rea-
`son why this expression should have less protection
`than the expression copyright owners claim as theirs.
`The vibrancy of online speech, and how it, by its
`very existence, in turn inspires yet more speech, illus-
`trates why the doctrine of fair use exists. By allow-
`ing downstream speakers to consider and comment on
`what has come before, we enable even more to come af-
`ter. Yet with the subjective standard effectively giving
`carte blanche to private parties to cause any amount
`of online speech to be censored on a whim, the DMCA
`ends up destroying the very thing copyright law is in-
`tended to foster.
`Certiorari should be granted to ensure that this
`damage to speech that a healthy democratic society de-
`pends on cannot continue to accrue.
`
`II. Certiorari Is Necessary to Finally Cure the
`Injury to Speech and Fair Uses the Lack of
`an Objective Good Faith Standard Inflicts
`The harm caused by a lax standard is real and being
`realized at an ever-increasing rate to speakers and the
`public that benefits from having access to this speech.
`copyright in any of the targeted speech. See Section II.B infra
`p. 18 for examples of this takedown notice abuse.
`
`
`
`15
`
`As with any censorship it is a harm that accrues as
`soon as deletion is forced, regardless of whether it was
`later restored or any specific pecuniary harm was re-
`alized. Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The
`loss of First Amendment freedoms, for even minimal
`periods of time, unquestionably constitutes irrepara-
`ble injury.”). Any unjustified censorship for any length
`of time represents a serious affront to the First Amend-
`ment and the parallel values reflected in copyright law.
`Carroll, 393 U.S. at 181 n.5 (“The elimination of prior
`restraints was a ‘leading purpose’ in the adoption of
`the First Amendment.”).
`Yet this form of prior restraint is a particularly per-
`nicious injury that all too many speakers have had to
`endure and all too many will have to endure if bal-
`ance is not restored to the DMCA. Certiorari should be
`granted in order to put an end to this constitutionally-
`intolerable harm.
`
`A. Certiorari Should Be Granted in This
`Particular Case
`This case represents just one of the countless ex-
`amples of legitimate speech succumbing to illegitimate
`censorship without any effective means of addressing
`that injury. See Section II.B infra p. 18 (noting other
`such cases). But the egregiousness of the injury here,
`and the lengthy, thus far fruitless quest to seek relief
`under the law, present a rare opportunity to stem the
`tide of wrongful censorship of speakers like Petitioner.
`Although instances of illegitimate takedown de-
`mands are rapidly accruing, opportunities for judicial
`intervention are still seldom. The Ninth Circuit’s Rossi
`holding renders remedies under § 512(f) all but illu-
`
`
`
`16
`
`sory, thus deterring those whose speech has been re-
`moved from seeking redress. As the history of Peti-
`tioner’s case attests, pursuing a § 512(f) claim is a dif-
`ficult and costly process. It is rare to find a speaker
`with both the risk tolerance8 and resources9 willing
`and able to attempt to swim upstream against a prece-
`dent so overly protective of their censors.
`Certiorari in Rossi was denied, but there are sev-
`eral reasons why certiorari should be granted here.
`First, that case was the first to interpret the “good
`faith” standard as a subjective one, and the full scope
`of the decision’s deleterious effect on speech was not
`as apparent then as it is now. Second, its facts did not
`8Pursuing any remediation through the DMCA—whether
`through § 512(f) or 512(g)—is a risky proposition that puts
`wronged speakers in the crosshairs of their challengers. See
`note 5 supra p. 9; see also Comments of the Organization
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
