Want to file a DMCA takedown notice? Figure out fair use.

The Ninth Circuit released its decision in Lenz v. Universal this morning — the case about the baby dancing in his kitchen to Prince’s “Let’s Go Crazy.” It’s a ruling that gives a lot of gifts all around.

Fair use is an authorized use, not an affirmative defense

The main takeaway is the court’s holding that fair use is a right granted by the Copyright Act, and is wholly authorized by the law. It is not an affirmative defense to infringement, despite often being labeled as such for procedural reasons (“That fair use may be labeled as an affirmative defense due to the procedural posture of the case is no different than labeling a license as an affirmative defense for the same reason.”) It is, the court said, a mistake to conflate it with those affirmative defenses that excuse impermissible conduct; fair use is a wholly authorized and lawful use. Therefore, for purposes of the DMCA, a copyright holder must consider fair use before sending a DMCA takedown notice.

What does that mean to you?

If you’re sending DMCA takedown notices, you need to consider whether or not the stuff you’re complaining about is actually being used perfectly legally. It’s legal to use copyright-protected content for things like criticism, parody, or for transformative purposes (where the original work has been substantially changed in a way that adds new expression or meaning). This can be hard to figure out — seriously,  even copyright attorneys can’t ever agree on fair use — but the important thing here is that you ask yourself the question: is this actually infringing or is it being used legally?
If you’re receiving a DMCA takedown notice, you need to ask yourself the question as well: was my use fair, or was it actually infringing? If you’re just posting a song on YouTube because the song wasn’t already on YouTube and you wanted to share it, sorry, you’re infringing. Think about that before you send a counternotice.
New Media Rights has a really great online interactive Fair Use App that can walk you through some of these questions.

Subjective good faith belief

Because Universal failed to consider fair use before sending its takedown notice, the court held to the Rossi standard and imposed a subjective good faith belief standard in considering whether or not it knowingly misrepresented (for §512(f) purposes) that it had formed a good faith belief that Lenz’s video did not constitute fair use. In Rossi, the court held that “[a] copyright owner cannot be liable simply because an unknowing mistake is made, even if the copyright owner acted unreasonably in making the mistake. Rather, there must be a demonstration of some actual knowledge of misrepresentation on the part of the copyright owner.” The court reaffirmed this holding, saying:

“To be clear, if a copyright holder ignores or neglects our unequivocal holding that it must consider fair use before sending a takedown notification, it is liable for damages under § 512(f). If, however, 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. A copyright holder who pays lip service to the consideration of fair use by claiming it formed a good faith belief when there is evidence to the contrary is still subject to § 512(f) liability.”

What does that mean to you?

Believe it or not, this is the important stuff, when you sort through the legalese. This means that all you have to do is try.
  • If you don’t try at all to consider fair use, you’re violating the law.
  • If you say you considered fair use and formed a good faith belief, but all the evidence shows you totally ignored fair use, you’re violating the law.
  • But if you consider fair use, reasonably and in good faith, you’re safe. Even if your decision was wrong. Even if you thought something wasn’t fair use and some court later decides it actually was. As long as you can show you tried, you’re fine.

Automated DMCA takedowns can still consider fair use

The court didn’t leave copyright holders totally exposed, and in fact, did not demand human review of all content before sending DMCA takedowns. It discussed the implementation of computer algorithms as a “good faith middle ground for processing a plethora of content while still meeting the DMCA’s requirements to somehow consider fair use.” It set out guidelines for sufficient consideration of fair use in automated takedown programs, such as where
  1. “the video track matches the video track of a copyrighted work submitted by a content owner;
  2. the audio track matches the audio track of that same copyrighted work; and
  3. nearly the entirety . . . is comprised of a single copyrighted work.” *

What does this mean to you?

If you’re using a system for automated DMCA takedowns, you now have a very clear guide for how it should be configured. Content that would not be caught by this system should still involve human review.
If you’re not using a system for automated DMCA takedowns, this part doesn’t affect you much, but you can still use it as a good guideline for what kinds of takedowns the court considers less likely involve fair use.

Actual losses not necessary for §512(f)

Finally, the court holds that 512(f) does not require a plaintiff to show that she has suffered any actual monetary losses before she can recover damages. In short, the court describes the DMCA as “a statutorily created intentional tort whereby an individual may recover nominal damages for a knowingly material misrepresent[ation] under this section [512].” Therefore, 512(f) plaintiff may seek any damages suffered as a result of the misrepresentation.

What does this mean to you?

This part, along with one other, has gone back to the district court. We’ll have to see how it ends up in reality. However, in theory, this means that a plaintiff suing for a wrongful takedown could recover damages including attorneys’ fees, even if the plaintiff hasn’t actually suffered any losses (Stephanie Lenz is represented by pro bono counsel who is only paid if she recovers attorneys’ fees).
This is important because of how rarely §512(f) is used. Section 512(f) is really the only thing in the DMCA that polices fraudulent or inappropriate use of DMCA takedowns, and it needs to have some teeth without being so dangerous that content creators are too afraid to file legitimate DMCAs. All users should care about how this one comes out, because the balance here needs to be delicate.

* Interestingly, these limits come from fair use principles the EFF proposed back in 2007, in response to efforts by a large group of commercial copyright owners to create guidelines for online service providers that host user generated content (UGC). The UGC Principles proposed by the group of copyright owners were complex, confusing, difficult for online providers to implement (they required the use of identification technology such as ContentID), and they gave no consideration of fair use. Ultimately, they were largely ignored by service providers who were not original signatories of the UGC Principles. By contrast, the EFF Fair Use Principles are simple, clear, and while they are not perfect (for instance, they would still permit the wrongful takedown of a licensed work), the court agreed that they do offer a “good faith middle ground.”

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