DMCA Takedown Notices Require Fair Use Considerations

Nancy Wolff and Josh Wolkoff, Cowan DeBaets Abrahams & Sheppard, LLPLenz v. Universal Music Corp., Case Nos. 13-16106 and 13-16107, in the United States Court of Appeals for the Ninth Circuit.The Digital Millennium Copyright Act (DMCA) was enacted in 1998 to address in part issues created by the internet and the widespread posting of content by users. In reforming the Copyright Act in 1978, the drafters thought that this Act would serve well into the future as it was content neutral but they could not foresee the way the Internet dramatically altered the way users exchanged content online and how perfect copies of copyrighted content could be virally distributed in seconds. Internet service providers (ISPs) were concerned with strict liability and monetary damages based on content posted by users and hosted on their servers over which they could not monitor and control. Section 512 of the Copyright Act was enacted to balance the concerns of ISPs and copyright owners. Qualified ISP were granted immunity from liability if they received a proper notice of infringement and expeditiously removed the infringing content.There has been much litigation over the years regarding various aspects of the DMCA, including whether a copyright owner is required to consider whether the use made of the uploaded content is considered a fair use and not an infringement before issuing a takedown notice. Because of the massive amount of content uploaded by users, and the difficulty to search the ever increasing number of sites, content owners, including the music industry, employ technology to crawl the internet to find unlicensed content in order to end the ISP the requisite takedown notice.A test case was brought in 2007 by Stephanie Lenz, a mother who sued Universal Music Group after YouTube removed a 29-second video of her toddler dancing to Prince’s “Let’s Go Crazy” in response to a DMCA takedown notice submitted by Universal Music Group, Prince’s music publisher. Not surprisingly, the Electronic Frontier Foundation, a pro user group supported Lenz in bringing this test case. Dubbed the “dancing baby case,” Lenz argued that her video was protected by the doctrine of fair use and that Universal’s takedown notice violated a section of the DMCA that provides liability for knowingly making material representations because it misrepresented that the video was infringing without considering fair use . Under the DMCA, a proper takedown notice must include a statement that the owner or its agent has a “good faith belief” that the use of the copyrighted work is not authorized under the law.The case ultimately made its way to the Ninth Circuit Court of Appeals. An appeal the court was asked to examine whether fair use was a right under copyright and an authorized use, or a defense to infringement and unauthorized. In a significant ruling to content owners and ISP’s, the court issued a bright line rule that copyright holders must consider the fair use doctrine before issuing takedown notices to remove otherwise infringing content under the DMCA. The Court’s decision makes clear that a failure to do so can open the door to nominal monetary damages and attorneys’ fees for any material misrepresentations made (or improper procedures used) in the course of pulling content from service providers like YouTube. The court explained that fair use must be treated differently than other affirmative defenses because fair use is not merely an exception to an infringement – it is one that that is expressly “authorized by law” under Section 107 of the Copyright Act.The Ninth Circuit took great pains, however, to qualify the thrust of its ruling, suggesting that it was “mindful of the pressing crush of voluminous infringing content that copyright holders face in a digital age.” In particular, a sender must only form a “subjective good faith belief” that the use is not a fair use or not authorized under the law. The inquiry “need not be searching or intensive” and, in fact, the Court recognized the role that computer algorithms and automated programs might play in making such fair use determinations and issuing proper takedown notices. The Ninth Circuit also confirmed that the question of liability for material misrepresentations does not hinge on whether or not the use is indeed a fair use: courts are “in no position to dispute the copyright holder’s belief even if [the court] would have reached the opposite conclusion.”As a result content owners should review their notice and takedown procedures in order to ensure that their procedures give due consideration to potential fair uses. DMLA, in watching this case over the years, revised the declaration in its DMCA notice to include reference to a fair use review: I have a good faith belief that use of the material in the manner complained of herein is not authorized by COPYRIGHT HOLDER, its licensing representatives, or the law and is not a fair use. Even if using recognition technology to find infringing uses, someone should review the use to determine if the use is a fair use or not. As fair use is determined on a case by case basis, and in not the easiest area of the law, the determination just needs to be made in good faith. As noted by the Ninth Circuit, it is not a material misrepresentation if a court might come out differently. Fair use is a judgment call after weighing the requisite four factors. DMLA has a webinar on fair use found here and the Copyright Office has published an index of fair use cases [http://copyright.gov/fair-use/]