babyThe cherubic little fellow pictured on the right is at the center of a closely-watched case involving the “takedown” provisions of the Digital Millennium Copyright Act of 1998 (“DMCA”). His mom, Stephanie Lenz, posted a 30-second YouTube video of the tike “dancing” to Prince’s “Let’s Go Crazy,” which can be heard playing in the background. Universal Music, Prince’s publisher, notified YouTube that it had a “good faith belief that the above-described activity is not authorized by the copyright owner, its agent, or the law” (magic language required by the DMCA) and demanded that the video be removed.  (Fisher-Price, apparently, had no objection to the product placement.)

Ms. Lenz did not take the matter lying down. Although the DMCA takedown provision is designed to protect  third-party internet content services like YouTube from liability for hosting infringing content, it also gives the users of the service who post material subject to a takedown notice certain rights, including the right to demand reinstatement and a cause of action for damages against the copyright owner for “knowingly materially misrepresenting . . . that material or activity is infringing.” Ms. Lenz demanded that the video be “put back” and sued Universal for damages on the ground that it had not, before demanding takedown, considered whether the video was protected under the doctrine of fair use.

Last week, in Lenz v. Universal Music, the Ninth Circuit handed Lenz an important—albeit provisional—victory, holding that a copyright owner is indeed required under the “good faith belief” standard to consider fair use before making a takedown demand.

Universal argued that DMCA did not require it to consider fair use before sending a takedown notice because a copyright owner is not required to allege or disprove fair use in copyright infringement litigation; rather, it is a defense that must be raised and proven by the alleged infringer. In legal parlance, Universal was arguing that it only needed a good faith belief that it had a prima facie case of copyright infringement, not that it could disprove any defense that Lenz might or might not raise .

The Court was not persuaded, holding that under the Copyright Act a fair use is an authorized use,  not simply a ground for excusing infringement, and therefore a good faith belief that a material or activity is “not authorized” by law requires a determination that it is not a fair use:

Fair use is uniquely situated in copyright law so as to be treated differently than traditional affirmative defenses. We conclude that because 17 U.S.C. § 107 created a type of non-infringing use, fair use is “authorized by the law” and a copyright holder must consider the existence of fair use before sending a takedown notification under § 512(c).

The Court did not, however, give judgment to Lenz on her claim, but rather left it for a jury to decide “whether Universal’s actions were sufficient to form a subjective good faith belief about the video’s fair use or lack thereof.” The Court’s description of Universal’s procedure for reviewing YouTube content is therefore of interest:

When reviewing such videos, [Universal] evaluated whether they “embodied a Prince composition” by making “significant use of . . . the composition, specifically if the song was recognizable, was in a significant portion of the video or was the focus of the video. . . . The general guidelines are that . . . we review the video to ensure that the composition was the focus and if it was we then notify YouTube that the video should be removed.” [Universal] contrasted videos that met this criteria to those “that may have had a second or less of a Prince song, literally a one line, half line of Prince song” or “were shot in incredibly noisy environments, such as bars, where there could be a Prince song playing deep in the background . . . to the point where if there was any Prince composition embodied . . . in those videos that it was distorted beyond reasonable recognition.”

Although this arguably amounts to consideration of one criterion of fair use, the amount and substantiality of the portion of the original used, it ignores the much more important criteria of whether the use is “transformative” and its effect on the market for the original. It appears that Universal’s procedure did little more than filter out infringements that a court would excuse as “de minimus.”

The fact that the Court held that a jury could find this cursory analysis sufficient, together with such statements as “a copyright holder’s consideration of fair use need not be searching or intensive” and “implementation of computer algorithms appears to be a valid and good faith middle ground for processing a plethora of content while still meeting the DMCA’s requirements to somehow consider fair use” leads me to believe that the hue and cry from the many copyright industry groups that supported Universal’s position, claiming that consideration of fair use will be an onerous and unworkable burden, is overwrought. I do, on the other hand, think it may offer some meaningful protection to the Stephanie Lenz’s of the world.

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