Fair Use Must Be Considered Pre-Takedown, 9th Circuit Rules in 'Dancing Baby' Case
The 9th U.S. Circuit Court of Appeals said the Digital Millennium Copyright Act (DMCA) “requires copyright holders to consider fair use before sending a takedown notification,” in Lenz v. Universal, affirming a U.S. District Court ruling against motions for a summary judgment in the case. “Failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law,” said Judge Richard Tallman in the three-judge panel’s opinion Monday. Judges Mary Murguia and Milan Smith also heard the case.
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The Electronic Frontier Foundation (EFF) sued Universal Music Group (UMG) in 2007 after the company sent YouTube a takedown notice for a 29-second video that Stephanie Lenz had posted that showed her toddler son dancing to Prince’s “Let’s Go Crazy” (see report in the July 25, 2007, issue). EFF eventually drew support from Google, Twitter and other tech companies in what became known as the “dancing baby” case. UMG had the backing of MPAA and RIAA.
“Even if, as Universal urges, fair use is classified as an 'affirmative defense,' we hold -- for the purposes of the DMCA -- fair use is uniquely situated in copyright law so as to be treated differently than traditional affirmative defenses,” Tallman said for the panel. “Fair use is 'authorized by the law' and a copyright holder must consider the existence of fair use before sending a takedown notification.”
The 9th Circuit panel ruled partially in UMG’s favor, rejecting Lenz’s argument that UMG knowingly misrepresented its good faith belief that Lenz’s video didn’t meet the fair use standard. “To be clear, if a copyright holder ignores or neglects our unequivocal holding that it must consider fair use before sending a takedown notification, it is liable for damages,” Tallman said for the panel. “If, however, 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.” Only a jury can “determine whether Universal’s actions were sufficient to form a subjective good faith belief about the video’s fair use or lack thereof,” but copyright owners must offer more than “lip service” to fair use arguments,” the 9th Circuit said.
The ruling “sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech,” said EFF Legal Director Corynne McSherry in a news release. “We’re pleased that the court recognized that ignoring fair use rights makes content holders liable for damages.” Public Knowledge, which supported EFF’s position, “had hoped that the case could have provided a much clearer path for attacking bogus takedown notices,” but the decision “still means that fair use cannot be ignored, and that the takedown process is not meant to be a one-sided affair,” said Vice President-Legal Affairs Sherwin Siy in a statement. UMG didn’t immediately comment.