Victory in Carpenter - EFFector 31.10

It all started when Stephanie Lenz posted a YouTube video of her then-toddler-aged son dancing while Prince’s song “Let's Go Crazy” played in the background, and Universal used copyright claims to get the link disabled. We brought the case hoping to get some clarity from the courts on a simple but important issue: can a rightsholder use the Digital Millennium Copyright Act to take down an obvious fair use, without consequence?

The U.S. Court of Appeals for the Ninth Circuit held that the DMCA requires a rightsholder to consider whether the uses she targets in a DMCA notice are actually lawful under the fair use doctrine. However, the court also held that a rightsholder’s determination on that question passes muster as long as she subjectively believes it to be true. This leads to a virtually incoherent result: a rightsholder must consider fair use, but has no incentive to actually learn what such a consideration should entail. After all, if she doesn’t know what the fair use factors are, she can’t be held liable for not applying them thoughtfully.

Thanks to the Lenz decision, courts will be more likely to think of fair use, correctly, as a crucial vehicle for achieving the real purpose of copyright law: to promote the public interest in creativity and innovation. And rightsholders are on notice: they must at least consider fair use before sending a takedown notice. After the Supreme Court denied petitions to consider the Ninthb Circuit's ruling, the case returned to the district court for trial on the question of whether Universal’s takedown was a misrepresentation under the Ninth Circuit’s subjective standard. Rather than go to trial, the parties have agreed to a settlement.

This year marks the fourth anniversary of the Supreme Court’s decision in Alice v. CLS Bank. In Alice, the court ruled that an abstract idea does not become eligible for a patent simply by being implemented on a generic computer. Now that four years have passed, we know the case’s impact: bad patents went down, and software innovation went up.

Lower courts have applied Alice to throw out a rogues’ gallery of abstract software patents. Counting both federal courts and the Patent Trial and Appeal Board, there are more than 400 decisions finding patent claims invalid under Alice. These include rulings invalidating patents on playing bingo on a computer, computerized meal plans, updating games, and many more. Some of these patents had been asserted by patent trolls dozens or even hundreds of times. A single ruling threw out 168 cases where a troll claimed that companies infringed a patent on the idea of storing and labeling information.

The Border Security and Immigration Reform Act (H.R. 6136), introduced before Congress last week, would offer immigrants a new path to citizenship in exchange for increased high tech government surveillance of citizens and immigrants alike. The bill calls for increased DNA and other biometric screening, updated automatic license plate readers, and expanded social media snooping. It also asks for 24 hours-a-day, five-days-a-week drone surveillance along the southern U.S. border.

This bill would give the U.S. Department of Homeland Security broad authority to spy on millions of individuals who live and work as far as 100 miles away from a U.S. border. It would enforce invasive biometric scans on innocent travelers, regardless of their citizenship or immigration status.

As Congress weighs different factors in the ongoing immigration debate, we urge them to look closely at the expanded high-tech surveillance provisions in this proposed package. This bill would undermine the privacy of countless law-abiding Americans and visitors, regardless of citizenship.