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DMCA takedown bots must respect 'fair use' of copyright – US appeals court

Beaks' decision won't change anything, though

The concept of "fair use" of copyrighted images and music has been given a big boost in a decision this week by the California Appeals Court (Ninth Circuit).

The court ruled that music and film companies need to take into account whether their material is being used legally before issuing DMCA takedown notices.

In doing so, it explicitly rejected the claim made by Universal Music Group that "fair use" was something others would need to use to argue against a takedown notice.

The court stopped short of awarding the plaintiff, Stephanie Lenz, any damages however, saying she would need to sue Universal for knowingly not accounting for fair use before it sent its takedown request to YouTube.

At the heart of the case is a 29-second video of a toddler dancing to Prince's song "Let's go crazy." The song is playing loudly in the background but is distorted and hard to make out over the sounds of the kid's stroller. The child's mother, Stephanie Lenz, filmed the scene as her youngest was learning how to walk and wanted to share it with friends and family.

Youtube Video

That child is now nine years old and in the fourth grade, as the video was filmed back in 2007. The case has been dragging through the law courts ever since.

The video was first posted in February 2007. It had about 200 hits when it received a takedown request in June 2007, after a Universal legal assistant was tasked with scouring YouTube for songs by Prince and came across the video. Lenz appealed the takedown but Universal fought her. She appealed again and the video finally went back up in July 2007. (It now has over one million views.)

Meanwhile, the Electronic Frontier Foundation (EFF) was looking for a case to support against over-zealous legal actions by music companies and felt Lenz's case was so cut-and-dry that it took it on and sued Universal on her behalf.

What is fair use?

Eight long years later and the Appeals Court has ruled that Universal did not adequately account for fair use of its property before sending out the takedown notice under the Digital Millennium Copyright Act (DMCA).

The term "fair use" was not included in the criteria developed for takedown notices, nor was it mentioned in its argument against Lenz when she twice appealed for the video to go back up.

Under the law (stemming from 1976), you are allowed to use someone else's copyrighted work "for purposes such as criticism, comment, news reporting, teaching, scholarship, or research."

Back in 1976, Congress didn't foresee video recording on mobile phones and YouTube, but it did provide a four-point test to decide if something was fair use or not. That test covers whether its use was commercial or not, the nature of the work, the amount of the work used, and the impact on its use for the value of the copyright.

It's fair to say that a barely audible track in the background of a video of a child running around with a stroller comes under fair use.

The battle

Nevertheless, Universal decided to fight the case, which led to a long series of back-and-forth legal arguments from 2007 to 2010, when a partial judgment was filed in Lenz' favor. A second decision followed in 2013, which was then appealed to the Ninth Circuit.

Although the decision comes down firmly against Universal – noting that when it comes to fair use, "Universal's interpretation is incorrect as it conflates two different concepts" – it declined to find that Universal had knowingly misrepresented that it had indeed considered fair use before sending the takedown notice.

"Though Lenz argues Universal should have known the video qualifies for fair use as a matter of law, our court has already decided a copyright holder need only form a subjective good faith belief that a use is not authorized," it notes.

That decision led to one of the three judges formally dissenting. Judge Milan Smith felt that it was obvious that Universal had not accounted for fair use and so it should be liable for damages.

Smith also dissented with the other critical aspect of the judgment: a discussion over the use of automated takedown notices, which have become the norm in the intervening years.

The majority noted that automated systems are able to account for fair use before sending out takedown notices, and so human judgment was only going to be necessary for a small number of cases.

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.

Smith felt that was a step too far and argued that unless such a system could account for all four of the fair use tests, music companies should not be allowed to "rely solely on a computer algorithm."

It's not known yet whether Lenz/EFF will continue to pursue Universal through the courts in an effort to extract damages. The EFF's legal director Corynne McSherry said in response to the judgement: "Today's ruling sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech. We're pleased that the court recognized that ignoring fair use rights makes content holders liable for damages."

Although the end result may look like a waste of everyone's time and money, the EFF argues that the decision has come "at a critical time."

Why? Because we are entering election season. It notes: "Heated political campaigns have historically led to a rash of copyright takedown abuse. Criticism of politicians often includes short clips of campaign appearances in order to make arguments to viewers, and broadcast networks, candidates, and other copyright holders have sometimes misused copyright law in order to remove the criticism from the Internet."

Of course in the case of the current Republican frontrunner, Donald Trump, such a process seems unlikely: he appears to be leading the field precisely because of his willingness to say and do things that would normally undermine a presidential candidate. ®

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