The dancing baby, YouTube, Prince and Universal Music

Dancing BabyOn 7 February 2007, Stephanie Lenz uploaded to YouTube a 29-second video of her 13-month-old toddler, Holden, as he boogies down to Prince’s ‘Let’s Go Crazy’ playing in the background on the stereo.

She was understandably excited to share the precious moment with friends and family. A mere twenty-eight people, mostly friends and family, had viewed the video by June, when YouTube informed her by email that it had removed the video after Universal Music Publishing Group claimed the video had infringed on copyrighted material owned by it, namely the Prince song that was playing in the background.

The email also warned future copyright infringements on her part could force YouTube to cancel her account.

I was really surprised and angry when I learned my video was removed.
Universal should not be using legal threats to try to prevent people from sharing home videos of their kids with family and friends.
Stephanie Lenz

Making the case even stranger, it was reported Prince was personally involved in Universal Music issuing the takedown notice on Stephanie Lenz’s video, with an unnamed source quoted as saying:

This guy scours the Internet. He’s really intense about this stuff.

Stephanie Lenz was now a mum in a fighting mood. First, she sent a ‘counter-notice’ to YouTube and her video was restored about six weeks later.

Under the Digital Millennium Copyright Act (DMCA) online hosting platforms like YouTube are legally obliged to take both an original takedown notice and any counter-notice at face value, and act on them.

But Stephanie Lenz didn’t stop there. Next, she contacted international non-profit digital rights group, the Electronic Frontier Foundation, and sued Universal Music, claiming they abused the DMCA because her use was protected by the fair use provision, and Universal Music failed to take that into consideration before issuing the takedown notice.

107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Eight years later Stephanie Lenz won a significant battle in the fight, a shot across the bow of copyright holders sending out frivolous takedown notices under the DMCA.

On Monday, following a complex web of long-running interlocutory skirmishes, the US Court of Appeals for the Ninth Circuit cleared the way for her case to go to trial, and in the process set a guideline that is likely to change how media companies will police their copyright online. The Court of Appeals held copyright holders must consider the fair use provision of the DMCA before sending takedown notices to online services, such as YouTube.

Fair use is not just excused by the law, it is wholly authorized by the law.

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.

… parties must individually consider whether a work is a fair use before representing that the work is infringing in a takedown notice. If they do not, and the work is a non-infringing fair use, they are subject to liability for knowingly misrepresenting that the work is infringing.
Lenz v. Universal Music Corp. Nos. 13-16106, 13-16107 (9th Cir. September 14, 2015)

The matter will now go to trial to determine whether:

  • the video in question is covered by the fair use provision; and
  • during the process undertaken by Universal Music in issuing the takedown notice appropriate consideration was given to the fair use principle, to satisfy the good faith requirement.

I can see how the video may satisfy the first question, but it will be particularly interesting to see if she can clear the second, given an assistant in Universal Music’s legal department, Sean Johnson, was actively involved in the review of the video:

When Johnson reviewed Lenz’s video, he recognized Let’s Go Crazy immediately. He noted that it played loudly in the background throughout the entire video. Based on these details, the video’s title, and Lenz’s query during the video asking if her son liked the song, he concluded that Prince’s song “was very much the focus of the video.” As a result, Johnson decided the video should be included in a takedown notification sent to YouTube that listed more than 200 YouTube videos Universal believed to be making unauthorized use of Prince’s songs. The notice included a “good faith belief” statement as required by 17 U.S.C. § 512(c)(3)(A)(v): “We have a good faith belief that the above-described activity is not authorized by the copyright owner, its agent, or the law.”
Lenz v. Universal Music Corp. Nos. 13-16106, 13-16107 (9th Cir. September 14, 2015)

Provided those hurdles are cleared, the Court of Appeals decision means Stephanie Lenz will be able to seek nominal damages from Universal Music. Only nominal damages in this case, because the video was non-commercial and was taken down only for a short time.

However, following this decision, damages for an unlawful takedown notice could be far more substantial if a financial loss can be demonstrated.

Large corporate copyright holders often use computer algorithms to trawl the internet looking for videos that ‘violate’ their copyright, and DMCA takedown notices are generated and sent out virtually automatically – such a process does not take fair use into account. This inevitably means many takedown notices are sent out without any basis in law.

In that context the judgment of the Court of Appeals is a win for common sense.

The judgment also offers some helpful guidance for copyright holders:

  • by noting that a fair use analysis need not be searching or intensive; and
  • by providing for the possibility of using a computer algorithm to determine fair use – it will be interesting to see whether an algorithm can be developed which is capable of considering the four factors laid down in the fair use provision of the DMCA.

Australia and fair use

Australia’s Copyright Act 1968 (Cth) does not contain a US style fair use provision. Instead it provides prescriptive fair dealing exemptions for research or study, criticism or review, parody or satire, reporting news, and professional advice.

In 2013 the Australian Law Reform Commission considered whether Australia should adopt a US style fair use provision, and concluded that it should.

In its response to the review the government indicated that it does not favour the incorporation of fair use into Australian copyright law.

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