In a ruling that is being hailed by fair use advocates, the U.S. Court of Appeals for the Ninth Circuit this week affirmed that copyright holders must consider whether an unauthorized use of a copyrighted work may be protected by fair use before seeking to have it removed from online platforms like YouTube.
In a unanimous decision, a three-judge panel held that copyright holders must make a "good faith" effort to consider fair use before sending a DMCA takedown notice, and those who do not can be held liable for monetary damages.
The court was unequivocal in its decision. It squarely rejected Universal’s claim that fair use can only be applied as an affirmative defense to infringement charges, reiterating that fair use is “better viewed as a right.” And it was unmoved by claims that considering fair use would be too burdensome on copyright owners.
“Copyright holders cannot shirk their duty to consider, in good faith, prior to sending a takedown notice, whether allegedly infringing material constitutes a fair use, a use which the DMCA plainly contemplates,” the court concluded. “That this step imposes responsibility on copyright holders is not a reason for us to reject it.”
The ruling came in Lenz v. Universal, widely known as the “dancing baby” case because it involved a 29-second clip of a baby dancing to Prince's “Let’s Go Crazy.” In 2007, the home video went viral, garnering millions of views on YouTube. But Universal sent a takedown notice to YouTube, claiming the video infringed Prince’s copyright. The mother who shot the video, Stephanie Lenz, objected and eventually, the video was reinstated.
But concerned that corporate copyright holders were routinely abusing the takedown provision of the DMCA, potentially chilling free speech online, the Electronic Frontier Foundation sued Universal for damages on Lenz's behalf. After eight years of legal wrangling, the appeals court decision this week merely cleared the way for Lenz to take her case to trial. But the monetary damages she may or may not recover at trial are not the point, advocates say.
“Today’s ruling sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech,” said EFF Legal Director Corynne McSherry, who successfully argued the case.
Of course, most DMCA takedown notices are computer generated, and, in perhaps the most fascinating part of the decision, the court expressly acknowledged that computer algorithms could, in theory, make baseline fair use evaluations. The court wrote that the use of such programs “appears to be a valid and good faith middle ground for processing a plethora of content while still meeting the DMCA’s requirement to somehow consider fair use.”
The decision comes just weeks after the Authors Guild offered a radically different proposal for removing allegedly infringing content from the Internet. Citing the ineffectiveness and the burdensome nature of sending DMCA takedowns, the Authors Guild on July 10 proposed that Congress replace the current DMCA "Notice and Takedown" regime with a "Notice and Stay Down" provision that, far from requiring copyright owners to consider whether alleged infringement is fair use, would instead put the burden on Internet Service Providers (ISPs) to monitor and filter their networks for pirated works, or be held liable for damages.