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Big Changes in Online Copyright Law

Thanks to a court decision that was handed down yesterday, we’re looking at some big changes in online copyright law.

Way back in 2007, Stephanie Lenz posted a 29 second video to YouTube of her toddler dancing while the Prince song “Let’s Go Crazy” played fuzzily in the background. Check it out:

Universal Music Group sent YouTube a DMCA Takedown Notice. “DMCA” here refers to the Digital Millennium Copyright Act. The DMCA is a major part of how copyright is enforced online, so, while this part might seem like boring lawyer-y stuff, it’s actually pretty important.

DMCA Refresher

Here’s a DMCA refresher from my March 2015 blog post Can You Use Copyright to Combat Controversial Online Speech?

Go to the “Terms and Conditions” of any website that hosts user-generated content and you’ll see some info about their DMCA takedown notice procedure. The idea is that if you own the copyright for some piece of content – written copy, images, videos, whatever – and you find that someone’s using it online without your permission, you can send in this kind of notice to the hosting service, and, most likely, the service will take it down.

This provides hosting services with what’s called “safe harbor.” The service can’t be sued directly for copyright infringement if they comply with the DMCA takedown procedure. Theoretically, if this safe harbor protection wasn’t in place, there would be no blogging, social media, or web hosting companies; they would all have been sued out of existence for inadvertent copyright infringement.

OK, so Universal sent a DMCA takedown notice, which, quoting from the 9th Circuit opinion:

included a “good faith belief” statement as required by 17 U.S.C. § 512(c)(3)(A)(v): “We have a good faith belief that the above-described activity is not authorized by the copyright owner, its agent, or the law.”

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The Case Continues

Lenz, along with the Electronic Frontier Foundation, sued Universal on the grounds that the DMCA takedown notice was frivolous.

The recent 9th Circuit ruling focused on the “good faith belief” statement that Lenz’ use of the Prince song was not “fair use.”

For a refresher on Fair Use, check out my presentation, What Is Fair Use?

In reality, Universal made no attempt to consider whether or not the use of the song was “fair use” under U.S. copyright law.

The 9th Circuit panel held that:

Copyright holders cannot shirk their duty to consider—in good faith and prior to sending a takedown notification— whether allegedly infringing material constitutes fair use, a use which the DMCA plainly contemplates as authorized by the law.


Why This Is A Big Deal

Since the DMCA’s adoption in 1998, countless takedown notices have been filed. My sense is that, in the vast majority of these cases, little or no thought was given to whether or not the use was “fair” under the law. This ruling threatens to change how this works, and to liberalize the use of copyrighted works across the internet.

Let’s clear up a few points here.

First of all, the 9th Circuit’s ruling is legally binding in only a few states: Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, and California. Note that I saved the best for last. Because so much of the internet and entertainment industries are based in California, this ruling will have an impact even if you’re reading this in another state.

Next we should give some thought to what qualifies as good faith consideration of fair use. The 9th Circuit panel attempted to provide some guidance. The copyright holder’s conclusion about fair use doesn’t need to be the same one that a court eventually reaches:

If…a copyright holder forms a subjective good faith belief the allegedly infringing material does not constitute fair use, we are in no position to dispute the copyright holder’s belief even if we would have reached the opposite conclusion.

You don’t have to show that you spent a lot of time working on the problem:

In order to comply…, a copyright holder’s consideration of fair use need not be searching or intensive.

You don’t even need to carefully review the content, necessarily, which is a bit confusing:

…[F]ormation of a subjective good faith belief does not require investigation of the allegedly infringing content.

You can even have the evaluation performed by a computer, although the 9th Circuit panel didn’t get into the details of how that would actually need to work:

We note, without passing judgment, that the 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.


Practical Applications of this Ruling

It seems that the simplest way to put it is that you just have to show that you gave some consideration to the fair use issue before issuing a DMCA takedown notice.

The best practice is for this conversation to occur or be recorded on paper (or in an email or similar format.) If you talk about the fair use issue with your lawyer, make a note of it, or send an email summarizing the conversation. At least the other party won’t be able to claim, as did Lenz in this case, that you never thought about fair use at all.

Hopefully this decision will help to stem the tide of DMCA abuse that I’ve written about in the past. DMCA takedown notices are a blunt tool, and the 9th Circuit was right to conclude that a consideration of fair use must be part of the process.

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