In 2007, Stephanie Lenz posted a 29-second video to YouTube of her baby dancing in the kitchen with Prince’s “Let’s Go Crazy” playing in the background. Claiming use of their song amounted to copyright infringement, Universal Music Corp. (Universal) sent YouTube a takedown notice under the Digital Millennium Copyright Act (DMCA). Lenz, with representation provided by the Electronic Frontier Foundation (EFF), sued Universal on the premise that Universal had abused the DMCA takedown provisions by violating Section 512(f), which bars misrepresentations of unauthorized use. According to Lenz, before sending its notice, they failed to take into account the possibility that Lenz’s video was shielded by the fair use doctrine. Last week, in Lenz v. Universal, a.k.a. the “dancing baby case,” the Ninth Circuit sided with Lenz in a ruling that will impose new burdens on copyright holders policing hosted content.
Notably, the court emphasized that a fair use is a legally authorized use and, thus, consideration of fair use is required for DMCA takedown notices. To this point, the court stated, “Copyright holders cannot shirk their duty to consider—in good faith and prior to sending a takedown notification—whether allegedly infringing material constitutes fair use, a use which the DMCA plainly contemplates as authorized by the law.” The court further noted that merely because “this step imposes responsibility on copyright holders is not a reason for us to reject it.”
While the fair use consideration highlighted in this case clearly presents a burden to copyright holders, a good faith belief is sufficient. That is, the copyright holder does not need to be correct in its consideration. “If a copyright holder forms a subjective good-faith belief the allegedly infringing material does not constitute fair use, we are in no position to dispute the copyright holder’s belief, even if we would have reached the opposite conclusion,” the court wrote.
The amount of consideration required is limited. In considering whether there is fair use, the court stated, companies like Universal “need not be searching or intensive.” Indeed, the court was “mindful of the pressing crush of voluminous infringing content that copyright holders face in a digital age.”
To deal with this reality, the court affirmed that computers may be leveraged to support the fair use analysis. Importantly, the court wrote, “[w]e note, without passing judgment, that the implementation of computer algorithms appears to be a valid and good faith middle ground for processing a plethora of content while still meeting the DMCA’s requirements to somehow consider fair use.”
However, token assertions that fair use was considered fail. The court explained that “[a] copyright holder who pays lip service to the consideration of fair use by claiming it formed a good faith belief when there is evidence to the contrary is still subject to … liability.” Moreover, with respect to willful blindness, the court said it will negate good faith, holding “the willful blindness doctrine may be used to determine whether a copyright holder ‘knowingly materially misrepresent[ed]’ that it held a ‘good faith belief’ the offending activity was not a fair use.”