Copyright, Fair Use, Free Speech, Prince, and the case of the Dancing Baby

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November 1, 2016 by Paul Dughi

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Stephanie Lenz thought it was kinda funny when she saw her baby dancing back in 1984. She took video and posted a clip of less than 30 seconds on YouTube. In the background, amid a fair amount of ambient noise (and another child screaming), you can make out “Let’s Go Crazy,” a song by Prince.

Someone at Universal Music spotted the video, heard the song, and sent a takedown notice to YouTube under the Digital Millennium Copyright Act. YouTube, as it does with most takedown requests, pulled the video to avoid liability.

This happens regularly and you rarely hear anything about it. This time, though, was different.

Lenz wanted it back up, so she went to YouTube with a lawyer and ask it to be reinstated on the service under the doctrine of fair use. YouTube did allow the video back online six weeks later.

But Lenz didn’t stop there. She sued Universal, saying they should have known it was fair use and they were liable for their actions.

“Defendants (Universal Music) knew or should have known that the Holden Dance Video did not infringe any UMPG (Universal Music) copyrights on the date they sent YouTube their complaint under the DMCA — Lenz lawsuit filing

A 2008 US District Court heard the case and then — 8 years later — a federal appeals court sided with the dancing baby. It ruled, in part, that copyright holders need to consider whether material is exempt from copyright claims due to fair use before sending a DMCA takedown notice.

Electronic Frontier Foundation joined in the suit. It’s a non-profit organization that champions civil liberties online.

“Today’s ruling sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech. We’re pleased that the court recognized that ignoring fair use rights makes content holders liable for damages.” –Corynne McSherry, Electronic Frontier Foundation legal director

But there was a great big “if” in the ruling from the court. It said that a copyright owner that sends a takedown notice, even if it’s wrong, can’t be liable if it makes a mistake — even if it acted “unreasonably in making the mistake.” In other words, without proof that the copyright holder knowingly filed the takedown request despite understanding it was legal under fair use, Universal wouldn’t be liable. It would take more than just filing a frivolous claim. To be liable, Universal had to know they were filing a frivolous claim.

Proving that would be nearly impossible. It also set a really high bar in an attempt to stop future claims. That led to Lenz and the EFF to petition the Supreme Court to weigh in on the matter.

“Left undisturbed,” the petition reads, “the ruling in this case gives a free pass to the censorship of online speech, particularly fair uses.

The Supreme Court hasn’t decided whether it will review the case at this point. It has asked for input from the US Solicitor General.

“Recognizing the risks this “notice and takedown” regime could pose for lawful speech, Congress required copyright holders to allege infringement by specifically attesting that they have formed a “good faith belief” that the use in question is not authorized “by the owner, its agent or the law.” 17 U.S.C. § 512©. And Congress created a cause of action, Section 512(f), which allows those injured by false allegations to hold their accusers accountable.”

“The Ninth Circuit has rendered those safeguards all but meaningless. It held that a copyright holder cannot be held liable for causing the takedown of lawful content as long as it subjectively believes the material is infringing — no matter how unreasonable that belief may be.” — Lenz/EFF petition to Supreme Court

The Consumerist has followed the case closely since the beginning and has some great background information if you want to dig into it more.

75 Million Takedown Requests in one month

It’s a significant case because of the sheer volume of copyright material that is illegally posted on-line now and the incredible number of takedown requests. Most takedown notices are sent by automated systems these days.

Google alone had 75 million DMCA-related takedown requests… just in the month of March this year. The Verge reports that’s about 100,000 every hour. There’s no way a human could send or receive that money requests. With that kind of volume, it’s kind of amazing a human being will respond when you say your video has been flagged incorrectly.

But with immunity, copyright holders could cause all sorts of problem for legal uses of the material. Regardless of whether it’s OK under fair use, or other copyright exemptions, it can just flag it and the service — in order to avoid liability — will automatically pull the video. You can appeal to have it reinstated but that takes time.

Frankly, the whole thing’s a mess. I’ve gotten robot takedown messages for using music that we own the rights to use… paying a fee to use it exactly the way we’ve used it. The video got pulled and it took weeks to get it back up.

We’ll all be watching the Supreme Court to see how it wants to approach this issue.

BTW, here’s the video in question.

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