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
What does that mean to you?
Subjective good faith belief
“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?
- 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 video track matches the video track of a copyrighted work submitted by a content owner;
- the audio track matches the audio track of that same copyrighted work; and
- nearly the entirety . . . is comprised of a single copyrighted work.” *
What does this mean to you?
Actual losses not necessary for §512(f)
What does this mean to you?
* 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.”