Chances for Supreme Court Review of Lenz v. Universal Dim After Solicitor General Brief
Acting Solicitor General Jeffrey Wall's stand against petitions to the Supreme Court for a writ of certiorari to review the 9th Circuit Court of Appeals’ ruling in Lenz v. Universal may hinder the chances the top U.S. court will review the case, observers told us. A three-judge 9th Circuit panel ruled in 2015 in Lenz -- popularly known as the “dancing baby” case -- that the Digital Millennium Copyright Act “requires copyright holders to consider fair use before sending a takedown notification” (see 1509140070). The full 9th Circuit issued an amended opinion in 2016 that affirmed much of the original ruling but removed language that implied computer algorithms and automated programs were sufficient means for rights holders to do a fair use analysis. The Electronic Frontier Foundation and Universal Music Group (UMG) both sought a Supreme Court review of the case. The top court asked the Solicitor General’s office in October to opine (see 1611010024).
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The 9th Circuit was correct in finding that rights holders “cannot be liable simply because an unknowing mistake is made, even if the copyright owner acted unreasonably in making the mistake,” Wall said in a Thursday amicus brief. The court erred in focusing on “the truth or falsity of [UMG's] statement of good-faith belief, not (as [DMCA] Section 512(f) directs) on whether respondents had knowingly misrepresented petitioner's video to be infringing.” The 9th Circuit’s analysis “suggests that a copyright owner who sends a takedown notice without first conducting a ‘fair use’ inquiry may be held liable for that omission alone, whether or not the challenged material actually is infringing,” Wall said. “That approach cannot be reconciled with the text of Section 512(f), which imposes liability on a copyright owner who ‘knowingly materially misrepresents’ that the challenged ‘material or activity is infringing.’”
The 9th Circuit’s analysis “contains a significant legal error, and one that could give rise to unwarranted Section 512(f) liability in a case where the challenged material actually was infringing,” Wall said. “The case does not provide a suitable vehicle for correcting that mistake, however, because the error potentially benefits petitioner and respondents have not sought review of that aspect of the court of appeals' decision.” Lenz “has been litigated on the mistaken assumption that the standard for liability under Section 512(f) is governed by the meaning of the ‘good faith belief’ statement” required elsewhere in the statute, Wall said. The 9th Circuit in neither of its decisions in Lenz “squarely considered the proper interpretation of the controlling language in Section 512(f). That failure provides sufficient reason to deny the petition because this Court is ‘a court of review, not of first view.’” EFF is "disappointed that the Solicitor General did not support cert given the importance of this issue for millions of users," said Senior Staff Attorney Mitch Stoltz in a statement. UMG didn’t comment.
Some stakeholders already believed there not a clear circuit split on the issues present in Lenz before Wall argued against a Supreme Court review, said Tom Sydnor, visiting fellow at the American Enterprise Institute's Center for Internet, Communications and Technology. “There will eventually be a split” but the issue isn’t ripe to warrant a review without one, he said. Wall’s argument makes sense because the 9th Circuit’s errors “are obviously of great import,” music industry attorney Chris Castle told us: Lenz “would require any copyright owner sending a DMCA notice to essentially get a legal opinion on fair use, a truly bizarre result” that would affect all levels of the entertainment industry “regardless of their ‘sincere belief’ that the activity is infringing.”
Wall’s argument on Section 512(f) is also interesting as a statutory matter because he’s interpreting the law to mean “you only get damages if you misrepresent whether there’s actual infringement, not whether you have a good-faith belief as to whether there’s infringement or not,” a copyright lobbyist said.