A federal district court in California held on Wednesday that copyright owners must consider fair use before sending DMCA takedown notices to avoid liability for abuse of the law's procedures. The ruling is a huge victory for free speech advocates and may have far-reaching implications for the way content owners police infringement online.
The decision is just the latest highlight in a dispute that has drawn public attention from the start. In February 2007, Stephanie Lenz posted a video of her toddler son on YouTube. In the 29-second video, Lenz's son dances to Prince's "Let's Go Crazy," which is playing in the background. In June 2007, counsel for Universal Music sent YouTube a DMCA takedown notice pursuant to 17 U.S.C. § 512(c), claiming that the video infringed its copyright in the Prince song and requested that YouTube remove it from the website. YouTube complied and notified Lenz about the takedown. Lenz sent a counter-notification pursuant to 17 U.S.C. § 512(g), and the site put the video back up about six weeks later.
Going on the offensive, Lenz then sued Universal for violation of 17 U.S.C. § 512(f), which creates liability for knowingly making false claims in a DMCA takedown notice or counter-notice. The district court dismissed Lenz's orginal complaint back in April, finding that she had failed to allege facts showing that Universal knew that its copyright complaint was bogus. The court gave her permission to amend, however, and she came back with detailed factual allegations suggesting that Universal sent the takedown notice at Prince's behest "based not on the particular charateristics of [the video] or any good-faith belief that it actually infringed a copyright but on its belief that, as 'a matter of principle' Prince 'has the right to have his music removed.'" Sec. Am. Cmplt. ¶ 31.
When sending a takedown notice, copyright owners are required to state that they have a "good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law." 17 U.S.C. § 512(c)(3)(a) (emphasis added). The crux of Lenz's complaint is that Universal lacked this good-faith basis because it deliberately ignored whether her use of Prince's song was fair use.
Universal argued in its motion to dismiss that "copyright owners cannot be required to evaluate the question of fair use prior to sending a takedown notice because fair use is merely an excused infringement of copyright rather than a use authorized by the copyright owner or by the law." Lenz v. Universal Music Corp., No. 5:07-cv-03783, slip op. at 5 (N.D. Cal. Aug. 20, 2008). The court squarely rejected this argument, holding as follows:
[I]n order for a copyright owner to proceed under the DMCA with "a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law," the owner must evaluate whether the material makes fair use of the copyright. An allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim pursuant to Section 512(f) of the DMCA.
Id. at 6. The court also dispensed with Universal's more sophisticated argument that courts shouldn't require copyright holders to engage in notoriously fact-intensive and uncertain fair use analysis before acting to protect their rights. The court pointed out that it was not asking copyright holders to get the fair use analysis right in close cases, but simply to take a look at fair use before firing off a takedown demand. In extreme cases like Lenz's video, even a cursory glance might have avoided the whole debacle. Then again, I'm sure Universal's well-paid lawyers have come up with some non-laughable arguments about why Lenz's video is not fair use, and in the end these arguments may be sufficient to establish the required good faith in sending the takedown in the first place.
In fact, under a close reading of the case, copyright owners may be able to establish good faith simply by going through the motions of a fair use assessment. Following precedent from the Ninth Circuit, the Lenz court ruled that the copyright holder's subjective belief about whether the use is fair determines section 512(f) liability, not an objectively reasonable assessment of what fair use permits. See id. at 6-7. This may create an escape hatch for copyright owners. Absent a "smoking gun" email or memo establishing that the copyright holder believed the challenged use to be fair but sent the demand anyway, or direct evidence that the copyright owner simply did not consider fair use at all, it is hard to imagine how plaintiffs can win these cases. Then again, future courts might accept the argument that some uses are so obviously fair that it would be impossible to subjectively believe otherwise. This is essentially what the court did in Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195 (N.D. Cal. 2004).
In any event, the decision should impact the practices of large content owners who use automated processes to identify "infringement" and send out rafts of takedown notices. It also calls into question filtering strategies discussed jointly by commercial copyright owners and hosting providers. If a copyright owner must make a fair use assessment in order to act in good faith, one imagines that human eyeballs are required.
Overall, I'm glad that the court embraced a pragmatic, common-sense approach to the question of fair use and takedown notices. To my mind, it is pure, arid formalism to argue that a copyright owner may willfully ignore fair use just because it is an "affirmative defense" to copyright infringement or an "excused" rather than an "authorized" use. As the court correctly points out: a fair use is a lawful use. That is what should count in the takedown context, just as it does in a full-blown lawsuit. Indeed, giving breathing space to fair use is probably more important in the takedown context. Sending a takedown notice is comparatively cheap and easy, and the volume of takedown demands vastly overshadows the number of copyright lawsuits actually pursued in court. It's good to see a court recognize the burden that takedowns place on creative expression and freedom of speech.
There's a lot of good coverage on the decision out there. Here's a just a sampling:
- EFF: Judge Rules That Content Owners Must Consider Fair Use Before Sending Takedowns
- The Legal Satyricon: The DMCA? She Bite Sometimes - Lenz v. Universal
- madisonian.net: Notes from the Fair Use Front
- Ars Technica: Fair use gets a fair shake
- CNET: For YouTube videos, a "fair use" boost
- Wired/Threat Level: Judge: Copyright Owners Must Consider "Fair Use" Before Sending Takedown Notice
- Internet Cases: Sender of DMCA takedown notice should consider fair use
- Miro: Ruling Protects Fair Use & Remix Culture