United States: Fair Use Is Not A Defense – 9th Circuit Refuses To Rehear Dancing Baby Notice And Takedown Under The DMCA

For those unfamiliar with Stephanie Lenz's case against Universal Music, here's a summary. Lenz posted on YouTube a video of her infant son reacting to the song "Let's Go Crazy" as it played during the halftime show of the National Football League's 2007 Super Bowl. Universal Music Corporation found this video and issued a notice, under the Digital Millennium Copyright Act (DMCA), to YouTube to have it take down the video.

This procedure, which is often referred to as a notice and takedown, is a powerful tool for copyright owners. Indeed, for many copyright owners, having the infringing content removed resolves the infringement issue. For others, removing the material provides considerable leverage for the copyright owner to negotiate proper use of its copyrighted material or to negotiate a monetary settlement without filing a lawsuit.

The notice and takedown procedure was designed to encourage an Internet service provider (ISP) to cooperate in copyright enforcement by eliminating monetary risk for the ISP as long as the ISP follows the procedures outlined in the DMCA. The DMCA outlines a number of conditions that an ISP must meet to qualify for the act's protection, including the requirement that the ISP expeditiously take down allegedly infringing content after receiving a proper notice from the copyright owner. The question of what constitutes proper notice is at the heart of the Lenz case.

The DMCA identifies elements of proper notice, including, among other things, a statement that the complaining party has 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)(i-vi) [emphasis added]. To guard against abuses of the notice and takedown procedure, the DMCA provides liability for damages and attorneys' fees if a person providing notice knowingly and materially misrepresents that the accused material or activity is infringing. 17 U.S.C. 512 (f).

In Lenz, Lenz argued that Universal made a material misrepresentation when notifying YouTube that her video was infringing because it failed to consider that her use was authorized as a fair use. The 9th Circuit disagreed, as we wrote about on this blog.1

In sum it explained that fair use may be pled as an affirmative defense, but within the context of the Copyright Act, it is a limitation on copyright and, therefore, authorization under the law. While Universal was bound to consider whether Lenz's video was a fair use before providing notice and asking that the work be taken down, the 9th Circuit affirmed the district court's ruling that Lenz had not demonstrated misrepresentation as a matter of law. Both Lenz and Universal asked the 9th Circuit to rehear its summary judgment motions (en banc). The 9th Circuit refused, but did take an opportunity to revise its earlier opinion.

In the revised opinion, the court added further support for its holding that the copyright holder need only form a subjective good faith belief that a use is not authorized, citing the language of the DMCA. In particular, it submitted that if an objective standard of reasonableness were to apply, Congress could have incorporated this standard. The fact that it did not indicates an intent to apply the subjective standard traditionally associated with good faith.

The majority also removed dicta commenting on the burden of assessing fair use and acknowledging use of algorithms as a valid middle ground for processing content and meeting the DMCA's requirements. Removal of this language indicates that the majority is not willing to support a per se rule that screening algorithms satisfy the good faith requirement of the DMCA. Consequently, use of such screening systems carries the risk that they will not satisfy the DMCA's good faith notice requirement.

The dissent also amended the court's opinion, removing a lengthy criticism of the majority opinion's consideration of whether a good faith basis for a notice could be formed without any consideration of fair use. The revised dissent emphasized that knowledge that there is no basis for a representation is equivalent to making a misrepresentation. The dissent concluded that one who asserts a belief that a work is infringing without considering fair use has made a knowing misrepresentation.

The 9th Circuit's remand will allow the district court to factually consider what constitutes a good faith assessment of fair use. While the majority took no position as to what constitutes a good faith basis when considering fair use, the dissent would require a copyright holder to apply the statutory fair use factors:

  • The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  • The nature of the copyrighted work;
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • The effect of the use upon the potential market for or value of the copyrighted work.

From a planning perspective, the safer course for any screening program appears to include an explicit review of the fair use factors and other authorizations applicable to copyrighted works to meet the dissent's standard. While Lenz focused on proper notice, the same prohibition against misrepresentations applies to responses seeking to have the material put back up as well. As noted above, the consequence of making a misrepresentation carries liability for damages and attorneys' fees. Given that this liability could greatly exceed any monetary gain from publishing a work online or recovery for infringement, both content providers seeking to publish Internet content and those attempting to identify and take down infringing works should seek legal guidance before moving forward.


1 The original 9th Circuit decision was a 2-1 decision with a majority and a dissenting opinion.

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