Court Says Fair Use Still Matters in Takedowns. Here’s Why That’s a Real Victory.September 16, 2015
On Monday, the 9th U.S. Circuit of Appeals held that, yes, you can be sued if you tell an online host to remove content that was a fair use. The case, Lenz v. Universal, stemmed from the notorious “dancing baby” takedown, in which Universal Music sent a takedown notice to YouTube because Stephanie Lenz uploaded a home video of her toddler dancing to a Prince song.
Takedown notices are typically sent under the auspices of the Digital Millennium Copyright Act (“DMCA”). The DMCA gives online hosts a safe harbor from being sued for copyright infringement for the things their customers post, so long as they take them down when they get a notice from the copyright holder. The law gets specific about what the copyright holder has to include, such as what work is being infringed, where it found the infringing copy, and contact information. It also requires the notice-sender to state that it “has a good faith belief that the use of the material…is not authorized by the copyright owner, its agent, or the law.”
It’s that last bit that got Universal in trouble. Fair uses, after all, are “authorized by…the law.” Especially as there’s a subsection in the DMCA that says you can be sued if you “knowingly materially misrepresent…that material or activity is infringing.” That’s section 512(f), and it’s the basis of Lenz’s case against Universal. Universal misrepresented that the fair use was infringing, which means they should be on the hook.
And the Ninth Circuit agreed with that. Ignore fair use or disregard it in sending a notice, and you’ll lose.
Nevertheless, it’s not a perfect decision. As many have pointed out, this doesn’t mean that uploaders can force notice-senders to pay for every takedown of a fair use. If the notice-sender honestly believed that the use wasn’t fair use, it’s not on the hook. This means that if you want to sue someone for taking down material that was obviously fair use, you have to show that they sent the takedown notice even though they thought the material was fair use. (Or if they strongly suspected it was fair but turned a blind eye to checking it out further). That can be hard to prove, and “hard to prove” usually means “an expensive trial that most lawyers shudder to take on.”
And that’s one reason why some people might be a little more muted in their celebration of the case. It means that bringing a 512(f) case is still an expensive proposition that uploaders can lose even if they manage to demonstrate the obviousness of fair use in the material. So long as the copyright holder can show it sincerely held the absurd belief that a use wasn’t fair, they won’t be held liable.
But let’s not go crazy here — I think this is an overly pessimistic view of things. Lenz (and her attorneys at the Electronic Frontier Foundation) were breaking ground in making 512(f) effective. Before this case, I’d argue that 512(f), while intended to curb overzealous takedowns, was only useful in extreme situations — cases where someone was clearly abusing the copyright system to censor speech they just didn’t like. Now, though, we know it does more: It’s a warning to notice-senders that they must take their notices seriously, and that fair use is part of that serious consideration. With that comes an altered set of incentives for people sending takedown requests.
In this post-Lenz world, those notice-senders’ lawyers will be advising them to give fair use a wider berth.
And that’s a victory. Changes in the law don’t always have to herald a new wave of litigation; they can work their influence more subtly, outside of the courtroom. It may not mean that it’s worth it for you to sue if your fair use video is taken down, but it might make it less likely for that video to be taken down in the first place. And that’s a win for all backyard videographers, remixers, parodists, and the millions of other people who want to share their works with the world.