The DMCA has been a powerful tool for copyright holders in the digital age, but for the first time the court is saying there may need to some consideration behind it. The question is, will this case change anything down the road?
The video in question was as innocuous as they get: A mother had posted a 29-second video to Youtube of her son dancing to Prince’s “Let’s Get Crazy.” But Universal was having none of it, sending her a takedown notice under DMCA after one of their employees, tasked with combing through Youtube videos for violations (this was 2007, mind you), found the video. Stephanie Lenz, the plaintiff in question, acquired pro bono counsel from the Electronic Frontier Foundation (EFF) saying that the takedown was a violation of fair use.
Fair use, of course, has no precise definition. In case by case analysis, judges typically use a four-factor test to determine:
- The purpose and character of your use.
- The nature of the copyrighted work.
- The amount and substantiality of the portion taken.
- The effect of the use upon the potential market.
But on Monday, the Ninth Circuit released their own opinion, finding that a copyright holder must consider whether the allegedly infringing material is fair use. That good faith conclusion that the targeted upload isn’t protected by fair use, according to the court, is vital to application of the DMCA.
“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. That this step imposes responsibility on copyright holders is not a reason for us to reject it,” reads the opinion.
Which is a good rule to have; not all videos that play songs in the background constitute copyright violation, and I doubt people will be watching a 30 second video of a dancing baby specifically to avoid having to pay for a Prince song. In a way, this marks a win for Youtubers, who now have legal precedent saying they can sue trademark holders for libel if the video falls under fair use.
But this isn’t quite the victory for anti-DMCA advocates that it initially seems like. For starters, this case will be kicked back to district court for a jury to decide whether Universal did their part by considering fair use before sending a takedown notice.
And perhaps most importantly, because this case is now eight years old. Media companies no longer have employees comb through Youtube by hand, searching for violations and doling out DMCA violations; they’ve got bots now that do it for them. As Sarah Cronin writes on Drye Wit, the technology change was a subject the Ninth Circuit only barely touched on:
The Ninth Circuit only briefly addressed the logistics of media companies making fair use determinations on a large-scale, acknowledging the “pressing crush of voluminous content that copyright holders face in a digital age,” and stating that the process for checking whether the content is entitled to fair use protection “need not be searching or intensive.” The court further noted 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 Ninth Circuit did not address the difficulty courts have had in determining what exactly qualifies as fair use, which is made on a case-by-case determination.
Given that the system is largely automated these days, those questions—while acknowledged—don’t get a lot of answer. Sure, trademark holders may have to rejigger the system to not automatically write takedown notices the law can’t cash, but that’s unlikely to stop most takedowns they deal with.
So at the end of the day, what’s changed? Not a whole lot overall, with fair use still no closer to an exact definition, and this case not yet resolved. But for now intellectual property holders may think twice before just sending out DMCA takedown notices left and right, which isn’t nothing. So dance on now-9-year-old; your Youtube memory is safe for now.