Last month, the Ninth Circuit delivered its long awaited opinion in Lenz v. Universal Music, which determined whether a copyright owner must consider fair use before sending a takedown notice to a service provider, such a YouTube, pursuant to the Digital Millennium Copyright Act’s (DMCA) ‘notice and takedown’ procedure. Prior to Lenz, it was widely believed that fair use was only an affirmative defense made after the fact by accused infringers. Copyright holders, such as Universal Music Group, operated under the impression that they could send takedown notices to service providers without first considering fair use, while remaining free from liability for submitting bad-faith takedown notices, which are prohibited in section 512(f) of the DMCA. Once a service provider like YouTube receives a takedown notice, it must take down the corresponding video in order to remain protected from liability for copyright infringement under the relevant DMCA “safe harbor” provision.
Enter Stephanie Lenz, a mother who uploaded a video of her baby dancing to Prince’s “Let’s Go Crazy” in 2007. Universal Music Group, the master-recording (or “sound”) copyright owner of “Let’s Go Crazy,” responded by sending a takedown notice to YouTube, which then took down the video. Represented by the Electronic Frontier Foundation (EFF), Lenz sued Universal, arguing that this takedown notice violated the DMCA’s ‘notice and takedown’ procedure because Universal failed to consider fair use before sending the notice, and knew that it failed to do so, constituting a “bad faith” notice.
The court broke new ground by agreeing with Lenz, and holding that a copyright owner must consider the existence of fair use before sending a takedown notification under section 512(c) of the DMCA. In satisfying this obligation, merely paying “lip service to the consideration of fair use, in the face of evidence to the contrary,” is insufficient. However, while the EFF and Lenz wanted this holding to result in Universal being held liable immediately for damages under 512(f), the court instead determined that it must first be shown Universal “knowingly misrepresented in the takedown notification” that it had formed a “subjective good faith belief” the video was not authorized under the fair use doctrine. Therefore, a jury trial is required to answer the question of whether Universal’s actions were sufficient to form a “subjective good faith belief” about the video’s fair use or lack thereof.
While the holding in Letz appears to be a significant win for the reach of the fair use doctrine, and in the EFF’s words, “a strong message that copyright law does not authorize thoughtless censorship of lawful speech,” in reality, it will have no effect on the practice of industry giants sending mass takedown notices that likely encompass instances of fair use. First, even if the jury rules in favor of Letz, damages will be almost nonexistent, as the video was restored to YouTube shortly after it was taken down. Additionally, the lion’s share of YouTube users do not have the financial means to partake in eight years of litigation. Thus, the deterrent effect of Letz on actors like Universal is negligible. Second, the Ninth Circuit in Letz suggested that “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.” For any service provider that determines its digital fingerprinting algorithm already considers fair use, the holding in Letz will have zero effect. Lastly, the evidentiary burden of having to show an employee failed to form a “subjective good faith belief” that a video was not fair use when he sent a takedown notice is virtually impossible to overcome, especially for a YouTube user sitting in his chair at home. In sum, Letz’s holding sounds promising, but spells more of the same when it comes to takedown notice practices.
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Samuel Jacobs is an editor on the Michigan Telecommunications and Technology Law Review, and a member of the University Michigan Law School class of 2017.