19 January, 2016

Fair and Square - DMCA Takedown Notification Senders Must Consider Fair Use

The DMCA takedown notice has become near universal on the Internet, allowing for those whose rights have been infringed online to have the service provider take down that material or face the music for their ignorance. What this has given rights holders is, arguably, a weapon, which allows them to take down material on a whim with very little or no regard to its actual use or purpose. Often one can accidentally include infringing material, or even use them for a legitimate purpose, yet rights holders have never had to consider these facts, but could assert their rights when ever they wanted to. This changed towards the end of 2015, when the US Court of Appeals addressed the question on what amounts to 'authorization under 17 USC § 512. This writer wanted to discuss this case sooner, and laments his lateness.

The case of Lenz v Universal Music Corporation dealt with Stephanie Lenz, who uploaded a video on YouTube of her young kids dancing to the song Let's Go Crazy by Prince, lasting a lengthy 29 seconds. The video comprises of her two kids, specifically her youngest, bopping to the song, which is audible in the background. Upon finding Ms. Lenz's video, Universal Music lodged a removal request with YouTube, who promptly removed the video. Ms. Lenz sent a counter-notification to YouTube, which was defended by Universal as a legitimate request (and in their correspondence, did not discuss or mention fair use, but asserted plain infringement). Ms. Lenz subsequently sought counsel, and the video was reinstated some time after a second counter-notification was sent, and she pursued further action in the matter, asserting a misrepresentation claim under section 512(f).

The heart of the case lies in section 512, and more specifically, the obligations in places on both the notified and the notified party. Under subsection c, the service provider has to 'expeditiously' remove any infringing material brought to its attention so as to benefit from the safe harbor provisions in the same section, and they have to notify the party who placed the infringing material on their service (the same affords them an appeal process to these notifications as well). Finally, should a rights holder abuse this process, subsection f provides that the person whose material has been removed due to this abuse can subsequently claim for damages due to the misrepresentation made by the notifying party.

A big point of contention in the case was whether a rights holder has to consider fair use under 17 USC § 107 before using the notification process. Although the section does not mandate this, it does, however, stipulate that "...the complaining party has a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law". This would potentially encompass fair use, as that would amount to an authorization for the work's use under law, even if the party who controls those rights objects to the use in some way.

Fair use, who would've thought!?
The Court discussed, although fairly briefly, whether fair use would be an affirmative defense that merely excuses infringement (i.e. does not authorize the use, but merely dismisses a later assertion of infringement should one be put forth), or whether it would be a true authorization and not an affirmative defense. The Court dismissed Universal's argument, and asserted that "...for the purposes of the DMCA — fair use is uniquely situated in copyright law so as to be treated differently than traditional affirmative defenses. We conclude that because 17 U.S.C. § 107 created a type of non-infringing use, fair use is "authorized by the law" and a copyright holder must consider the existence of fair use before sending a takedown notification under § 512(c)". This means that when a rights holder intends to send a notice under the section, they have to make a bona fide assessment on the legitimacy of the use of the work under fair use. Failure to do so would be a misrepresentation under section 512(f).

What followed was the Court's determination on whether Universal should have known that the video was fair use. This is an objective assessment, seeking actual knowledge of fair use on part of the notifier, rather than a simple mistake (using the notifier's subjective good faith knowledge at that time, rather than a standard of reasonable belief or knowledge, for example). The Court saw that Universal had not been 'willfully blind' to the existence of fair use or its application to Ms. Lenz's video. Ultimately, no misrepresentation was found, and Ms. Lenz could not recover damages. One has to still note the closing remarks by Judge Tallman, who handed down the majority's judgment: "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".

This writer was truly surprised this point had never been argued at court, but found Judge Tallman's judgment to be correct. Arguably, fair use (and fair dealing here in the UK) is not merely an affirmative defense, but presents an authorization for the use of copyright protected works for those intended purposes, or within the remit of a given similar provision. Leaving it as merely a shield would encumber those using the works with a heavy responsibility for defending their use at court; one that most of them would not necessarily be able to afford. A stricter authorization allows for this use, and puts the burden on those who wish to assert their rights, and rightfully so, since they benefit the most from their works.

Source: JDSupra

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