Welcome back to Legal Geek. This week, we review the important copyright decision rendered this week by the 9th Circuit Court of Appeals in Lenz v. Universal Music, also referred to as the Dancing Baby DMCA Takedown case.
https://archive.org/details/LegalGeekEp51
Stephanie Lenz is a mother who posted a YouTube video in 2007 of her toddler dancing to a Prince song, which became a viral video. (Insert clip of Prince) On Monday, a panel of 9th Circuit judges decided that Lenz had the right to force Universal Music Group to trial to determine whether that music industry organization had properly considered fair use before sending a DMCA takedown notice in 2007 to force the video off of YouTube.
The DMCA, or Digital Millennium Copyright Act, refers to a 1998 law which heightened penalties for copyright infringement on the Internet, while also adding an exemption from liability for internet service providers like YouTube from liability. The DMCA creates a safe harbor for those service providers who comply with proper takedown notices when a copyright owner asserts content posted is infringing their valid copyright.
The DMCA takedown process works like this: a copyright owner has an agent sent a DMCA takedown notice to a service provider like YouTube, as was the case here where Universal represented the interest of copyright holders to the Prince song used in Lenz's video. If this notice complies with language requirements and is specific enough, the service provider must remove the content and has the option to file a DMCA counter notice if it is believed that it has the rights to publish the content. When this happens, the original submitter of the takedown notice must take the fight to court within 10-14 days, or the content can be republished on the website or service.
In this case, Universal had argued that fair use in copyright is only an affirmative defense and that it was not necessary to worry about this concept when requesting DMCA takedowns. The Court disagreed, indicating that failure to consider fair use before issuing a takedown notice would make a triable question of whether a subjective good faith belief was present that the work was actually infringing the copyright asserted. Although Universal could still avoid the nominal damages that could be awarded for bad faith takedown notices under DMCA by proving it considered fair use, that at least must go to trial to be proven, which is a small win for the plaintiff Lenz.
So does this decision mean the largely automated process of scanning online content and sending mass DMCA takedowns by big companies like record labels and movie studios will no longer work? Not so fast, my friends.
Fair use is a complicated 4 factor balancing test of copyright law which balances various equitable factors like nature of the alleged infringing work and amount of content taken to determine if re-using a copyrighted work is protected as a fair use. It's a complicated topic in and of itself that we will save for another day.
Although it could be argued that computerized algorithms really only consider one of these factors, namely the amount of the work copied, it will likely be difficult to argue that these scanning algorithms are ignoring fair use altogether (assuming the filter applied would let some content through without prompting a DMCA takedown notice). Yet that is what will be required to prove a lack of considering fair use, which would lead to improper takedown notice damages for the copyright owner. Put simply: it will be exceedingly difficult to stop copyright owners from proving a good faith belief when they file takedown notices that are later challenged as improper.
The Bottom Line is, computerized or automated review of online content and mass DMCA takedown notices are here to stay, like it or not. This decision in Lenz clarifies how DMCA conflicts in court will play out when they occur, but it is not a sweeping enough change to dramatically alter how copyright owners do business to protect their IP in today's online marketplace.
Until next time, don't rail against the DMCA process too much, as it does strike somewhat of a good balance between online content creators and those copyright owners with legitimate rights to protect.
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