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,
theyd 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 OGrady 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 OGradys ruling
is both courageous and fundamentalwhat 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 cant 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 Offices 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 EFFs 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 couldnt 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/

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 holders 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 holders 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 Im right, Im wrong because I may have known that I didnt know what I might have
known if Id considered it longer. I will either be taken down by the known unknowns
or the unknown unknowns that I should have known but couldnt afford to hire a lawyer
to tell me I didnt 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

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 dont 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 lawyers 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 pointif it ever comes to passthe infringement
wouldnt 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
whats 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 thats what the Congress really intended, then why dont they
just say outright that multinational tech companies and their surrogates always win and
suck it up?
I dont think thats what the Congress intended, but I cant 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 Offices 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