In its ruling (PDF), the Ninth Circuit said that rights holders have to consider fair use before sending takedown notices. Lenz sued, claiming the notice violated the Digital Millennium Copyright Act, which protects certain types of fair use, beginning a lengthy legal battle that became known as the “dancing baby case”.
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A call to a spokeswoman for Universal Music was not immediately returned. Fair use includes journalistic accounts and criticism, educational uses for teaching or research, and brief, private postings that don’t damage the commercial market for the work. On Monday, the 9th Circuit Court of Appeals made this clear in a long-awaited opinion in a dispute concerning a 29-second video clip of a toddler dancing to the 1984 Prince hit “Let’s Go insane”.
The ruling is an early victory for advocates who argue music and movie publishers are too quick to allege infringement when requesting that Web companies – like YouTube or Twitter – remove copyrighted content. The assistant had concluded that because “Let’s Go Crazy” was “very much the focus of the video”, a takedown notice should be sent.
Techdirt, meanwhile, pointed to the ruling’s stipulation that rightsholders will not be liable if they have formed “a subjective good faith belief” that allegedly-infringing material is not fair use – something that is hard to test.
“The Lenz decision is a path marking case in the world of copyright law”, Keyes says. The court agreed with a lower court that rejected Universal’s and Lenz’s motions to grant pre-trial judgments in their favour. “Universal knew it had not considered fair use, and therefore knew it lacked a basis to conclude that the video was infringing”.
The company could ask a larger panel of the 9th Circuit to reconsider the case.
Universal spokesman Andy Fixmer declined immediate comment.
That decision led to one of the three judges formally dissenting.
Do these notices now need to be all human reviewed to check for cases of fair use? In the end it all comes back to making a fair system for all parties involved. As long as it holds such a good faith belief, the copyright owner is not liable for any DMCA misrepresentation – even if a court subsequently reaches the opposite conclusion and decides that fair use does indeed apply.
EFF also praised what it said was the court’s rejection of the claim that “a victim of takedown abuse can not vindicate her rights if she can not show actual monetary loss”.
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Of course in the case of the current Republican frontrunner, Donald Trump, such a process seems unlikely: he appears to be leading the field precisely because of his willingness to say and do things that would normally undermine a presidential candidate.
