With smartphones rarely more than an arm’s reach away, people post videos of family and friends on social media every day. Proud parents think nothing of taking videos of their mini-me and adding them to YouTube. And sometimes they get lucky: the video hits America’s sweet spot, goes viral and earns the family some fifteen minutes in the spotlight. And then, in the midst of this rising popularity, their video . . . disappears. Why? Because they incidentally include copyrighted material such as songs.
The Case of the Dancing Baby and the Digital Millennium Copyright Act (DMCA).
Yesterday, a court decision from the Ninth Circuit Court of Appeals handed a mom a victory over a music giant, causing social media mommy bloggers everywhere to breath a (at least temporary) collective sigh of relief. This is a case that started eight years ago when a mother in Pennsylvania shot a cute video of her toddler dancing as Prince’s song “Let’s Go Crazy” inspired him in the background. She thought it was cute, and uploaded the 29-second video onto YouTube. But unbeknownst to her, the head of business affairs at Universal Music (then Prince’s publishing administrator which was responsibl
e for enforcing his copyrights) had given an assistant in the legal department a very important assignment: troll YouTube every day. If a video made significant use of a Universal song, it went on a list for a Digital Millennium Copyright Act (DMCA) takedown notice addressed to YouTube. So Mr. Assistant found and watched the bouncing baby, saw that a good portion of the song was clearly audible, concluded that the song was the focus of the video, and added the video to a list of almost 200 others. Universal then sent the massive take-down notice to YouTube, demanding that all of the videos be removed based on its “good faith belief” of copyright infringement.
YouTube did as it was told. Why? Section 512(c) of the DMCA allows service providers like YouTube, Google and the like to avoid copyright infringement liability for storing user content if (among other things) they remove or disable access to the content after receiving notice from a copyright holder that it has a good faith belief the content infringes their copyright — what is commonly called a “takedown notice.” By taking the video down, YouTube can take advantage of this Section 512 “safe harbor” against liability. To get the video back up, the alleged infringer can send YouTube a “counter-notification” stating that they have a good faith belief that the material was removed or disabled as a result of mistake or mis-identification. This is what Stephanie Lenz, the dancing baby’s mom, did. YouTube then put the video back up and informed Universal. Not surprisingly, Universal was not happy. Eventually Ms. Lenz sued, arguing that Universal had abused the DMCA and was subject to liability as having “knowingly materially misrepresented” that the video was infringing. She asserted that her use of Prince song on the video was “fair use” and therefore not infringing. Under the law, to determine whether the “fair use” exception applies to allow use of the copyrighted work free and clear, one considers (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.
A Need to Consider “Fair Use” Prior to Sending Out Takedown Notices.
Does the song qualify as “fair use” in this particular case? The court did not reach that point, reserving it for trial if the case does not settle. The issue here, however, was whether the DMCA requires copyright holders like Universal to look at whether the potentially infringing material is a fair use of a copyright before sending out takedown notifications. In other words, can Universal adequately say it acted under a “good faith belief” of infringement when it did not even consider whether the use of a song was “fair use” under the law? The Ninth Circuit said NO: Universal and copyright holders like it must consider fair use before asking services like YouTube to remove videos that include material they control:
Universal faces liability if it knowingly misrepresented in the takedown notification that it had formed a good faith belief the video was not authorized by the law, i.e., did not constitute fair use. Here, Lenz presented evidence that Universal did not form any subjective belief about the video’s fair use—one way or another— because it failed to consider fair use at all, and knew that it failed to do so. Universal nevertheless contends that its procedures, while not formally labeled consideration of fair use, were tantamount to such consideration. Because the DMCA requires consideration of fair use prior to sending a takedown notification, a jury must determine whether Universal’s actions were sufficient to form a subjective good faith belief about the video’s fair use or lack thereof.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 under §512(f).
The Ninth Circuit further cautioned that copyright holders must analyze fair use thoughtfully, rather than simply paying “lip service” to the doctrine.
Will this holding make a difference? Time will tell, but both sides certainly appear to think the impact may be significant. This case and its decision pitted Hollywood against both Silicon Valley and free speech advocates. Google, Twitter and Tumblr took Ms. Lenz’ side in favor of fair use (keeping more videos online and requiring more effort to be put into take-down notices), while the Motion Picture Association of America and the Recording Industry Association of America (who make money off music royalties) supported Universal. The Electronic Frontier Foundation, an advocacy group that represented Ms. Lenz in her lawsuit against Universal, called the judges’ decision a victory for Internet users — “a strong message that copyright law does not authorize thoughtless censorship of lawful speech.” A spokesman for the R.I.A.A., on the other hand, stated that “We respectfully disagree with the court’s conclusion about the DMCA and the burden the court places upon copyright holders before sending takedown notices.”
Implications of Using Automated Computer Algorithms to Find Infringing Content.
The decision is not only a victory over the Mr. Assistants of the music industry, but possibly their successors. Nowadays, it is not an individual combing through YouTube looking for infringers, but automated software. While a human such as Mr. Assistant might be able to conduct a subjective analysis of the “fair use” factors before adding a video to a take-down list, can a software program evaluate soft variables like “the nature of the copyrighted work” or “the effect of the use upon the potential market for or value of” the work? How does software evaluate whether a baby dancing to “Let’s Go Crazy” might negatively impact the song’s value? Affect sales? How does a computer program determine whether the portion of the song used is significant enough to weigh against fair use? Absent a level of artificial intelligence that does not yet exist today, how does software determine whether there is a “subjective good faith belief” of infringement? It is possible that someone may write a program that can effectively evaluate the fair use criteria, allowing the music studios and others to again automate the process. But for now, it appears that an extra human step has been added to their analysis, and that they must now pause and think about each individual situation before sending mass take-down notices.
The court addressed this issue briefly, noting “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.” The court stated that:
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.” [citation omitted]. Copyright holders could then employ individuals like [Mr. Assistant] to review the minimal remaining content a computer program does not cull.
The solution appears to be having an algorithm engage in the “first wave” of review, adding to the mass takedown list all material that copies both the audio and video aspects of a song and plays all or almost the entire thing. For example, someone posting online a video they took in the movie theater of the season’s hottest film. But for the remaining material such as dancing baby videos and those like it — which use only part of a song, use the whole song for educational or news purposes, or where the song is only a secondary or unimportant part of the main focus — some human “second wave” review appears necessary. At least until someone writes an algorithm that can not only evaluate video and audio more in depth, but can appreciate the “subjective” analysis of the fair use test.