A viral video featuring a dancing baby eventually pitted Hollywood and Silicon Valley against each other in a clash over the procedural requirements of federal copyright law. The 9th Circuit Court of Appeals recently decided Lenz v. Universal Music Corp., after ongoing litigation that began when Stephanie Lenz protested Universal’s request that she remove a video from YouTube containing a portion of the Prince song, “Let’s Go Crazy” in the background. The court held that copyright holders must consider the fair use doctrine before sending takedown notifications under the Digital Millennium Copyright Act (DMCA).
Title II of the DMCA provides a limitation on the indirect copyright liability of web services arising through infringement by the services’ users. In order to qualify for the exemption, a service provider like YouTube must not have actual knowledge of or profit directly from copyright infringement of users. In addition, a provider like YouTube must promptly respond to notifications that hosted content is infringing by “act[ing] expeditiously to remove” the content. Lenz claimed that Universal, acting on behalf of Prince, abused the DMCA takedown system by “knowingly materially misrepresent[ing]” that her video infringed Universal’s copyright, for which the statute provides penalties. Specifically, Lenz accused Universal of ignoring the possibility that the fair use doctrine permitted her use of the Prince song.
Lenz was represented by the Electronic Frontier Foundation, an organization active in digital rights issues. On appeal, Google, Twitter, and Tumblr submitted amicus briefs in support of Lenz, while the Motion Picture Association of America (MPAA) and Recording Industry Association of America (RIAA) submitted briefs for Universal. The decision is mostly a win for the tech community, as the court interpreted fair use as its own category of non-infringing activity.
The decision wasn’t all bad news for Universal. The court specifically acknowledged that sending takedown requests via automated detection software could still comply with the DMCA. Media companies increasingly use programs like this to fight the constant stream of online pirated content. If the software finds content on a site like YouTube that is an exact replica of copyright-protected audio or video files, this could conceivably raise a presumption against fair use.
Both parties, left partially unsatisfied, have filed petitions for rehearing en banc. In the meantime, questions remain surrounding the practical implications of the ruling. While rights holders must consider fair use, the court was content with a “subjective good faith belief” of infringement, which it was “in no position to dispute.” Universal may have lost this case because it admitted the takedown notices were handled by an assistant in the legal department, whose process of searching for video clips and determining which to contest did not include any mention of fair use. The court stipulated that fair use consideration must be more than mere “lip service,” but future cases will inevitably grapple with what distinguishes lip service from a good-faith belief (“our lawyers thought about fair use but we still find your video to be infringing”). Fair use is a fluid doctrine that varies widely with context – without further guidance, requiring a rights holder to “believe” it is inapplicable could be an empty formality.
Full opinion here:
By: Trevor Maxim, ’17