Dancing Babies, The DMCA, Fair Use And Whether Companies Should Pay For Bogus Takedowns

Earlier this week the Ninth Circuit heard oral arguments in the appeal of Lenz v. Universal. This was the case where Stephanie Lenz sued Universal because Universal had sent YouTube a takedown notice demanding it delete the home movie she had posted of her toddler dancing, simply because music by Prince was audible in the background. It's a case whose resolution has been pending since 2007, despite the fact that it involves the interpretation of a fundamental part of the DMCA's operation. The portion of the DMCA at issue in this case is Section 512 of the copyright statute, which the DMCA added in 1998 along with Section 1201. As with Section 1201, Section 512 reflects a certain naivete by Congress in thinking any part of the DMCA was a good idea, rather than the innovation-choking and speech- chilling mess it has turned out to be. But looking at the statutory language you can kind of see how Congress thought it was all going to work, what with the internal checks and balances they put into the DMCA to prevent it from being abused. Unfortunately, while even as intended there are some severe shortcomings to how this balance was conceptualized, what's worse is how it has not even been working as designed. One such problem is with the content takedown system incorporated into Section 512. The point of Section 512 is to make it possible for intermediaries to host the rich universe of online content users depend on intermediaries to host. It does this by shifting the burden of having to police users' content for potential copyright infringement from these intermediaries to copyright owners, who are better positioned to do it. Without this shift more online speech would likely be chilled, either because the fear of being held liable for hosting users' infringing content would prompt intermediaries to over-censor legitimate content, or because the possibility of being held liable for user content would make being an Internet intermediary hosting it too crushingly high a risk to attempt at all. Copyright owners often grumble about having the policing be their responsibility, but these complaints ignore the awesome power they get in return: by merely sending a takedown notice they are able, without any litigation or court order or third-party review, to cause online speech to be removed from the Internet. It is an awesome power, and it is one that Congress required them to use responsibly. That's why the DMCA includes Section 512(f), as a mechanism to hold wayward parties accountable when they wield this powered unjustifiably. Unfortunately this is a section of the statute that has lost much of its bite. A 2004 decision by the Ninth Circuit, Rossi v. MPAA, read into the statute a certain degree of equivocation about what the "good faith" requirement of a takedown notice actually demanded. Nonetheless, the statute on its face still requires that a valid takedown notice include a statement that the party sending it 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." (emphasis added) The big question in this case is what the "or the law" part means in terms of making a takedown notice legitimate. No one is disputing that the notice that took down the dancing baby video was authorized by the agent in charge of administering the rights to Prince's music (at the hearing we learned that this is no longer Universal Music, but it was back then). But copyright is always contextual. In other words, just because someone uses (e.g., by posting to the Internet) a copyrighted work does not mean they have automatically infringed that work's copyright. There may well be circumstances enabling that use, like a license (including a statutory or compulsory license), or fair use. Whether the "or the law" part included authorization pursuant to fair use is what a significant part of the hearing addressed. Universal said that it didn't, arguing that fair use was only an affirmative defense. By "affirmative defense" Universal meant that fair use was just something you could argue as a defense to being accused of copyright infringement in a lawsuit but not something that existed more integrally as part of copyright law itself. As such, Universal argued, it was not necessary to consider it when sending a takedown notice claiming that the use in question was not authorized. EFF, arguing for Lenz, disagreed, however, arguing that the articulation of fair use in the statute, at 17 U.S.C. § 107, made fair use more than just a defense; rather, it is a statutory limitation constraining the scope of the copyright owner's exclusive rights