Wednesday, September 27, 2023

Dancing Baby Brings Good News to Appropriators

On Monday, the 9th Circuit ruled in Lenz v. Universal, known as the “dancing baby” lawsuit, that copyright holders must consider fair use before demanding potentially infringing material be removed from the internet under the Digital Millenium Copyright Act (DMCA). The case stemmed from a 29 second video posted on YouTube by Stephanie Lenz in 2007 of a child dancing while Prince’s song “Let’s Go Crazy” played in the background. Universal Music Group, responsible for enforcing Prince’s copyrights, sent a takedown notice under the DMCA to YouTube, claiming the video infringed on the copyright in Prince’s song. Lenz, represented by the Electronic Frontier Foundation (EFF), sued Universal, alleging the company had abused the DMCA by targeting a lawful fair use of the song.

Such an attempt to remove content known to be lawful would violate §512(f) of the DMCA, a section intended to prevent abuse by providing for damages for the alleged infringer if a person “knowingly materially misrepresents … that material or activity is infringing.” The person requesting a takedown must satisfy certain conditions outlined in the DMCA and also must hold a subjective, good faith belief that the use of the material is not “authorized by law” under §512(c)(3)(A)(v). In 2007, Universal’s legal department monitored YouTube for possible unlawful copyright violation under a set of criteria which did not explicitly include consideration of the fair use doctrine.

dancing baby

Dancing Baby via YouTube

The primary question in the case concerned whether fair use is “authorized by law” in the above cited section of the DMCA. Universal argued that fair use qualifies as an affirmative defense, an excuse for otherwise unlawful use; a good faith belief therefore would not have to consider fair use. The court disagreed, finding that the Copyright Act defines infringement based on what does not qualify, namely, certain categories of fair use, as stated “… the fair use of a copyrighted work … is not an infringement of copyright” and is therefore authorized use under §512 of the DMCA. Fair use must be considered before a takedown notice can be sent. Thus, the 9th Circuit held “that the statute requires copyright holders to consider fair use before sending a takedown notification, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law.”

However, the court did not decide whether the criteria used by Universal’s legal department in identifying copyright infringement satisfied the “good faith belief” standard. In attempting to clarify this standard, the court stated that a copyright holder may not “pay lip service” but also does not require a “searching or intensive” review of fair use law. The court mentions that computer algorithms which are used to identify potentially infringing content may still be used, but must now also consider fair use, sort of. The court also found that Lenz is not required to show monetary damages to recover under §512 (f); however, she must demonstrate that the copyright owner had actual knowledge of misrepresentation.

Supporters tout the decision as a win for free speech. EFF Legal Director Corynne McSherry noted “Today’s ruling sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech.  We’re pleased that the court recognized that ignoring fair use rights makes content holders liable for damages.” Others question the effect the decision will have on the barrage of takedown notices sent regularly to Internet Service Providers, citing the ambiguity of the court’s interpretation of the “good faith belief.”


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