United States: Ninth Circuit "Dancing Baby" Copyright Decision: A Quick Read For The Busy Practitioner

Last Updated: September 23 2015
Article by David A. Kluft

Earlier this week, the Ninth Circuit affirmed the Northern District of California's denial of cross motions for summary judgment in Lenz v. Universal Music. In an opinion by Judge Richard Tallman, the Court held that the defense of fair use must be considered by a copyright owner prior to the filing of a takedown notice under the Digital Millennium Copyright Act (DMCA). Here is our summary of the opinion:

1. What's the case about?

Universal assigned a legal assistant to monitor YouTube for copyright infringement. The legal assistant issued a DMCA takedown notice for any video that included what he viewed as the "significant" use of Universal's music. Generally, if a video used the music for more than a second or two, and if the music was recognizable, Universal issued a takedown notice.

Stephanie Lenz uploaded to YouTube an out-of-focus 29-second video of her baby dancing in her kitchen while Prince's Let's Go Crazy was playing in the background, loud but distorted. The Universal legal assistant located the video, identified it as a significant use, and issued a takedown notice.

2. What is the DMCA "Good Faith" Requirement?

The DMCA requires that every takedown notice contain a signed statement that the copyright owner has "a good faith belief" that the accused use of the copyrighted work "is not authorized by the copyright owner, its agent, or the law." Universal's takedown notice contained this statement. False statements in a DMCA takedown notice are subject to Section 512(f), which imposes liability on "any person who knowingly misrepresents that . . . that material or activity is infringing."

3. What did the plaintiff allege Universal did wrong?

Lenz brought suit against Universal under Section 512(f). She alleged that her video was fair use and, because Universal had not expressly considered whether it was fair use, it could not have determined in good faith that her video was infringing. Therefore, Universal misrepresented that it had formed a "good faith belief" that her video was "not authorized by . . . the law." Universal countered that the statute did not require it to consider affirmative defenses before issuing a takedown notice. Both parties moved for summary judgment, and the District Court denied both motions.

4. Is "fair use" an authorized use or an excused use?

The Ninth Circuit first had to decide a fundamental question of copyright law: If something qualifies as a "fair use," does that mean it is infringing but the infringement is excused, or does that mean it is not infringing in the first place? The Court held that "fair use is not just excused by the law, it is wholly authorized by the law."

What this means for purposes of the DMCA is that, if you sign the statement avowing that you have formed a "good faith belief" that a use is "not authorized by the law," you are implicitly avowing that you formed a good faith belief that it is not a fair use. And, if it turns out you didn't really consider fair use, then you may have made a misrepresentation under Section 512(f). Put simply, you have to think about fair use before issuing the takedown notice.

5. How did the Court reconcile Lenz and Rossi?

Back in 2004, the Ninth Circuit decided Rossi v. Motion Picture Association of America, which at first glance appeared to dictate a different result. In that case, the MPAA issued a DMCA takedown notice to a website that it believed, incorrectly, was engaged in copyright infringement. The website operator filed a Section 512(f) suit, arguing that the MPAA had made a knowing misrepresentation because it hadn't conducted a reasonable investigation or formed an objectively reasonable belief that infringement had occurred. The Court held that the party issuing the takedown notice had no duty to investigate or form an objectively reasonable belief. Rather, the standard was subjective: as long as the copyright owner believed in good faith that there was infringement, no matter how incorrect that belief, there was no "knowing" misrepresentation.

Rossi was not a fair use case, but the district court in Lenz had observed that, "in light of Rossi, it appears that Universal's mere failure to consider fair use would be insufficient to give rise to liability under Section 512(f)." Other courts have read Rossi the same way. The Ninth Circuit didn't expressly acknowledge this confusion, but reconciled Rossi and Lenz as follows: if you consider fair use and mess up, you are protected because you did not subjectively know you were wrong (so in that sense Rossi still applies). However, if you didn't consider fair use at all, you know that you didn't consider it at all. Thus, you didn't comply with the statute and you subjectively know that you could not have formed a "good faith belief" of infringement. In the Court's view, Lenz could therefore proceed with her case on an "actual knowledge" theory, i.e., Universal's actual knowledge that it failed to consider fair use and therefore could not have formed a good faith belief of infringement.

6. What's the takeaway?

When you issue a takedown notice, part of the process must be a consideration of the fair use doctrine. Extensive legal research and factual investigation is not required, but copyright holders should at least consider in a meaningful and informed way the four elements of fair use.

This does not mean that every possible defense need be considered. The Court went out of its way to point out that "fair use is uniquely situated in copyright law so as to be treated differently," and that defenses like copyright misuse and laches do not merit similar treatment.

Similarly, Lenz is not the death knell for automated DMCA takedown computer systems. The Court "note[d], without passing judgment, that the implementation of computer algorithms appears to be a valid and good faith middle ground" for simple cases where there is infringement of the entirety of a single work. However, at least for now, the computers are still going to have to consult with one of us humans about the less obvious stuff.

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