In early January, desperate for a distraction from the outgoing president’s attempts to overturn the election, I began digitizing home movies from my childhood in Tallahassee, Florida. As a kid, I fancied myself something of an auteur, and I wielded our family’s camcorder like a chubby and flamboyant Stanley Kubrick, forcing my friends to perform take after take in the atrocious short films I scripted. When my creative juices ran low, we would sometimes film a “music video” instead. This exercise involved blasting a CD on my boombox while we lip-synced and gyrated, staring straight into the camera as if we were hostages trying to convey our location through interpretive dance. When my friends grew impatient with the rougher contours of my artistry, I filmed these videos alone, in my bedroom, in front of the full-set Encyclopedia Britannica from the 1970s that taught me the word homosexual. I already had the meaning figured out.
On Jan. 4, 2021, I stumbled upon one video that nicely captured these solo sessions: my performance, at age 9, of *NSYNC’s era-defining hit “It’s Gonna Be Me.” Feeling that the dance conveyed an essence of my selfhood then and now, I cut and tweeted a 36-second clip. It was warmly received, and then I forgot about it—until May 22, when I received a disturbing email from Twitter. “The following material has been removed from your account in response to the DMCA takedown notice,” the company informed me, providing a link to my tweet. It then accused me of violating Twitter’s “policy” and warned that “repeat violations of this policy may result in suspension of your account. In order to avoid this, do not post additional material in violation of our Copyright Policy and immediately remove any material from your account for which you are not authorized to post.”
So I did what any sane person would do: I filed a DMCA counter-notice demanding that Twitter restore the video.
Even if you don’t know what the DMCA is, you probably know what it does. Congress passed the Digital Millennium Copyright Act in 1998, responding to the entertainment industry’s growing panic about online piracy. Among other things, the DMCA established a process for copyright holders to combat infringement without initiating a formal legal proceeding. It allows the owner of a copyrighted work to file a “takedown notice” to a service provider demanding removal of the infringing material. When providers receive takedown notices, they typically comply first, then chastise the user for their alleged infringement.
It is impossible for copyright holders to police every corner of social media for infringements. So they have outsourced enforcement to industry trade groups that have automated the process by building bots to search the web for unauthorized use of copyrighted works. Sony Music, which holds the rights to “It’s Gonna Be Me,” is a member of one such group, the International Federation of the Phonographic Industry. And it was the IFPI that flagged my video and ordered Twitter to take it down.
I know this because Twitter forwarded the IFPI’s complaint to me, and it included more than four dozen additional takedown notices that IFPI filed on behalf of Sony Music at the same time, with links to the offending material. My tweet appears to have been caught up in a dragnet targeting late-April tweets featuring the meme “It’s Gonna Be May” (which explains why IFPI only found it in May, when it was four months old); five other souls had their *NSYNC tweets removed alongside mine. Other flagged songs included “Binz” by Solange (seven takedowns), “It’s Not Right but It’s Okay” by Whitney Houston (four), and “BIG TYME” by Rick Ross featuring Swizz Beatz (three). The clear winner, though, was “It’s the Most Wonderful Time of the Year” by Andy Williams, with 14 takedowns; it seems the song was used in some fan-made yuletide tribute to Friends that has since been scrubbed from the internet.
Upon receiving Twitter’s warning, I had a few options. I could let the matter go, which I wasn’t going to do. I could repost the video—and risk getting my account locked or suspended. Or I could attempt to restore the video by filing a DMCA counter-notice alleging fair use. I chose this final route because I am a lawyer with an oversensitive radar for injustice, and also because I had a slam-dunk case: One of the most famous fair use controversies of all time arose from a video strikingly similar to mine. In 2007, Stephanie Lenz uploaded a 29-second YouTube video of her young child dancing to Prince’s “Let’s Go Crazy.” Universal Music then filed a takedown notice. The material so obviously qualified as fair use that Lenz sued Universal Music for filing a notice in bad faith; a federal appeals court then agreed that the corporation had a legal obligation to consider fair use before filing a takedown notice. (Eventually the parties settled, so Universal didn’t have to admit to violating this duty.)
There are three main reasons why my video, like Lenz’s, falls under fair use. First, it was “transformative,” taking the raw material of a copyright work and creating something very different with incontrovertible artistic merit. (Is it better than the original? I’ll let you decide.) Second, it used only a small amount of the work rather than a large portion of it. Third, my video had no effect on the potential market for the work. Sony Music and the gentlemen of *NSYNC will not lose any profits because of this video. As I explained in my counter-notice: “I did not create or publish it for commercial purposes. It was shared for the entertaining value of my own childish dance moves, not so viewers could hear a snippet of a song for free. I used only 36 seconds of the song. And there is simply no possibility that my video might diminish the value of, or market for, the original recording.”
Twitter forwarded my counter-notice to the IFPI, but kept my video down in the meantime. Six months later, Twitter Support sent me an email stating that “we’ve ceased withholding the material located” due to my “DMCA counter-notice.” I’ve accepted this outcome as a victory, though I could certainly create more of a headache for the IFPI if I wanted to. Thanks to Stephanie Lenz’s case, the organization was legally required to contemplate the possibility that my video was fair use; it seems highly unlikely that anyone did so here. I could file a lawsuit against the IFPI alleging that it failed this legal duty by outsourcing copyright enforcement to bots, but I don’t think it’s worth the trouble. I’d like to believe that the group learned its lesson. But what’s most important is that all the world can once again witness the glory of my high kick.
https://slate.com/technology/2021/11/twitter-dmca-takedown-nsync-ifpi-victory.html
