Copyright Ruling Expands Fair Use on Social Media
By Carl A. Aveni, Litigation News Contributing Editor – March 7, 2016

In a case highlighting the divide between social media platforms and traditional media content-holders, a federal court of appeals held that copyright holders must consider fair use before trying to remove online content. At issue were a 30-year-old pop song, a 29-second home video, and a 13-month-old dancing toddler. Hanging in the balance were the rights of ordinary people to post home videos online and the competing rights of copyright holders when their works get used without permission.

In Lenz v. Universal Music Corp., also known as the “dancing baby” case, the appellate court ruled that copyright holders must weigh whether the content was being used for satire, education, or other fair-use purposes before directing media platforms to remove infringing content. By adding this additional requirement, the decision recalibrates the balance between protected works and homegrown content in the digital age.

Protecting Digital Content Like It’s 1999
In 2007 Stephanie Lenz posted on YouTube a 29-second video of her toddler dancing to Prince’s 1984 hit “Let’s Go Crazy.” The copyright holder, Universal Music Corp., immediately sent YouTube a takedown notification under the 1998 Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 512(c)(3)(A). Platforms such as YouTube can avoid liability under the DMCA if they expeditiously remove content upon receiving such a notice. The content user may then direct the platform to restore the content by sending a put-back notification, including a statement “of good faith belief that the material was removed or disabled as a result of mistake or misidentification,” under 17 U.S.C. § 512(g)(3)(C).

Congress intended these dueling notifications “to shield service providers and content platforms from the possibly infringing conduct of their users,” says Naomi J. Gray, San Francisco, CA, cochair of the Copyright Subcommittee of the ABA Section of Litigation’s Intellectual Property Litigation Committee. “Congress wanted to create a safe harbor to promote the development of that part of the Internet. The safe harbor removes the service provider from the middle of whatever copyright fight follows between the copyright holder and the user,” states Gray. By taking the platform out of the mix, the DMCA sought to normalize the emerging frontier of online copyright disputes.

Except that it seldom works out that way. “This provision of the DMCA has always been considered a hot mess,” notes Gray. Because the burden to police infringing material rests with the content owner rather than the service provider, “the content industry views themselves as stuck in a giant game of whack-a-mole. On the other hand, users think the content industry is much too aggressive in their takedown notices. There’s just been a lot of dissatisfaction on both sides,” adds Gray.

That dissatisfaction has rarely led to litigation. “Something like 99.8 percentof all DMCA takedown notices are uncontested,” explains Marcus R. Chatterton, Birmingham, AL, cochair of the Copyright Subcommittee of the Section of Litigation’s Intellectual Property Litigation Committee. “The big, institutional copyright holders—i.e., movie studios, record companies—use automated algorithms to find potential infringement and then issue an automated takedown notice. The platform removes the content, the user does nothing further, and that’s the end of it.”

Baby, You’re a Star
Lenz not only sent a put-back notification to YouTube but also sued Universal Music Corp. Lenz argued that Universal could not have considered whether the video objectively constituted fair use under 17 U.S.C. § 107, because Universal used wholly automated algorithms to find her video and send the takedown notification. For its part, Universal claimed that the DMCA requires no such analysis in the first place. According to Universal, fair use is simply an affirmative defense to copyright litigation, having no pre-suit application whatsoever.

The U.S. Court of Appeals for the Ninth Circuit disagreed with Universal. Affirming summary judgment in Lenz’s favor, the appellate court held that fair uses were not merely excused infringements, but rather were not copyright infringements at all. The court reasoned that, “[a]lthough the traditional approach is to view ‘fair use’ as an affirmative defense . . . it is better viewed as a right granted by the Copyright Act of 1976.” Accordingly, a copyright holder would need to first consider fair use before issuing a takedown notification. Failing to do so, the copyright holder could be liable for damages, including attorney fees.

Let’s Not Go Crazy
Nevertheless, the decision was not a total victory for Lenz and social media–users, says Michael D. Steger, New York, NY, cochair of the Copyright Subcommittee of the Section’s Intellectual Property Litigation Committee. While the court required copyright holders to consider fair use before issuing takedown notifications, the court affirmed a subjective standard of review and implicitly endorsed some automated processes for policing online content.

As the court noted “[i]f 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.” Acknowledging “the pressing crush of voluminous infringing content that copyright holders face in a digital age,” the court continued “[w]e 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.”

The end result gives both sides something to be unhappy about and leaves plenty of room for future litigation. “The court left a lot of details to be sorted out by district courts and other circuits,” observes Steger. “Neither side really won decisively. This effectively just restores the equilibrium between online posters that creatively incorporate copyrighted material and the copyright holders themselves,” adds Steger. Chatterton agrees. “The Ninth Circuit really split the baby.”

Keywords: dancing baby, copyright, fair use, DMCA, takedown notification, put-back notification

 
Related Resources
Failure to Prepare Deponent Adequately Leads to Sanctions
State Bar's Advertising Rules Unconstitutional