But the DMCA's takedown system is part of the *real* law, while Content ID is a fake law, created and overseen by a tech monopolist, not a court. So the fate of the *Blurred Lines* discussion turned on the Engelberg Center's ability to navigate *both* the law *and* the n-dimensional topology of Content ID's takedown flowchart.

It took more than a year, but eventually, Engelberg prevailed.

Until they didn't.

14/

If Content ID was a person, it would be *baby*, specifically, a baby under 18 months old - that is, before the development of "object permanence." Until our 18th month (or so), we lack the ability to reason about things we can't see - this the period when small babies find peek-a-boo *amazing*. Object permanence is the ability to understand things that aren't in your immediate field of vision.

15/

Content ID has no object permanence. Despite the fact that the Engelberg *Blurred Lines* panel was the most involved fair use question the system was ever called upon to parse, it managed to *repeatedly* forget that it had decided that the panel could stay up. Over and over since that initial determination, Content ID has taken down the video of the panel, forcing Engelberg to go through the whole process again.

16/

But that's just for starters, because Youtube isn't the only place where a copyright enforcement bot is making billions of unsupervised, unaccountable decisions about what audiovisual material you're allowed to access.

Spotify is *yet another* monopolist, with a justifiable reputation for being extremely hostile to artists' interests, thanks in large part to the role that UMG and the other major record labels played in designing its business rules:

https://pluralistic.net/2022/09/12/streaming-doesnt-pay/#stunt-publishing

17/

Spotify has spent hundreds of millions trying to capture podcasting, in the hopes of converting one of the last truly open digital publishing systems into a product under its control:

https://pluralistic.net/2023/01/27/enshittification-resistance/#ummauerter-garten-nein

Thankfully, that campaign has failed - but millions of people have (unwisely) ditched their open podcatchers in favor of Spotify's pre-enshittified app, so everyone with a podcast now must target Spotify for distribution if they hope to reach those captive users.

18/

As Engelberg describes in its latest post, UMG and Spotify have colluded to ensure that this now-classic discussion of fair use will never be able to take advantage of fair use itself:

https://www.nyuengelberg.org/news/how-explaining-copyright-broke-the-spotify-copyright-system/

Remember, this is the *best case* scenario for arguing about fair use with a monopolist like UMG, Google, or Spotify.

20/

As Engelberg puts it:

> The Engelberg Center had an extraordinarily high level of interest in pursuing this issue, and legal confidence in our position that would have cost an average podcaster tens of thousands of dollars to develop. That cannot be what is required to challenge the removal of a podcast episode.

21/

Automated takedown systems are the tech industry's answer to the "notice-and-takedown" system that was invented to broker a peace between copyright law and the internet, starting with the US's 1998 Digital Millennium Copyright Act. The DMCA implements (and exceeds) a pair of 1996 UN treaties, the WIPO Copyright Treaty and the Performances and Phonograms Treaty, and most countries in the world have some version of notice-and-takedown.

22/

Big corporate rightsholders claim that notice-and-takedown is a gift to the tech sector, one that allows tech companies to get away with copyright infringement. They want a "strict liability" regime, where any platform that allows a user to post something infringing is liable for that infringement, to the tune of $150,000 in statutory damages.

Of course, there's no way for a platform to know a priori whether something a user posts infringes on someone's copyright.

23/

There is no registry of everything that is copyrighted, and of course, fair use means there are lots of ways to legally reproduce someone's work without their permission even when they object). Even if every person who ever has trained or ever will train as a copyright lawyer worked 24/7 for just *one* online platform to evaluate every tweet, video, audio clip and image for copyright infringement, they wouldn't be able to touch even *1%* of what gets posted to that platform.

24/