A US appellate court has ruled that copyright owners must take into account fair use before sending takedown notices to those accused of infringement, as well as to services like Google and YouTube that host such content. However, the change seems unlikely to bring an end to the thousands of automated takedown notices that are filed each month.
Ars Technica has an excellent rundown on the case and ruling, which you should read here. With the EFF’s support, someone (Stephanie Lenz) who posted a video of her two kids dancing to a Prince song (Let’s Go Crazy) sued Universal Music over a takedown notice it issued, saying Universal misrepresented in making the complaint for not taking fair use into account.
This all happened in 2007, and the case has been going since. In the latest ruling, the US Ninth Circuit Court of Appeals found that there was indeed a burden for copyright holders to consider fair use before filing a complaint. From the opinion that Ars Technica posted (PDF):
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. That this step imposes responsibility on copyright holders is not a reason for us to reject it.
The ruling means that Lenz can continue to seek damages from Universal, though those are likely to be small, assuming she actually wins. The broader impact seems to be that the many automated takedown notices being filed by large companies can continue.
Such notices often work by scanning for content that seems to contain video or text that’s used in copyrighted work. If such content is found, notices are sent to services like YouTube and Google. In turn, they remove the content under the provisions of the Digital Millennium Copyright Act. After that, it’s up to the person who posted the material to appeal to the hosting provider. That appeal, in turn, means the person agrees to a possible legal battle with the copyright owner.
Do these notices now all need to be reviewed by humans to check for cases of fair use? The court doesn’t appear to require this. From a key part of the ruling:
We 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. Cf. Hotfile, 2013 WL 6336286, at *47 (“The Court . . . is unaware of any decision to date that actually addressed the need for human review, and the statute does not specify how belief of infringement may be formed or what knowledge may be chargeable to the notifying entity.”). For example, consideration of fair use may be sufficient if copyright holders utilize computer programs that automatically identify for takedown notifications content where: “(1) the video track matches the video track of a copyrighted work submitted by a content owner; (2) the audio track matches the audio track of that same copyrighted work; and (3) nearly the entirety . . . is comprised of a single copyrighted work.” Brief for The Org. for Transformative Works, Public Knowledge & Int’l Documentary Ass’n as Amici Curiae Supporting Appellee at 29–30 n.8 (citing the Electronic Frontier Foundation website.
What’s more likely is that if notices are filed using non-automated means, they may be subject to more scrutiny that those filed by an actual human after considering fair case issues.
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