While many were focused on “The Big Dance” yesterday, the 9th Circuit Court of Appeals did some “dancing” of its own. The Court issued a revised opinion in Lenz v. Universal and thereby amended what has been referred to as the “Dancing Baby” Doctrine. Last fall, the Court issued its initial decision holding that before a copyright holder issues a “take down” notice to an online service provider, the copyright holder must first consider the “fair use” defense. The Court limited that holding by indicating that the copyright holder’s “consideration of fair use need not be searching or intensive.” The Court also noted that “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.” Both of those statements have been wiped clean from the Court’s amended opinion. Here’s the language from the prior opinion that wasremoved from the revised opinion issued yesterday:
In order to comply with the strictures of § 512(c)(3)(A)(v), a copyright holder’s consideration of fair use need not be searching or intensive. We follow Rossi’s guidance that formation of a subjective good faith belief does not require investigation of the allegedly infringing content. See 391 F.3d at 1003, 1005. We are mindful of the pressing crush of voluminous infringing content that copyright holders face in a digital age. But that does not excuse a failure to comply with the procedures outlined by Congress. Cf. Lenz, 572 F. Supp. 2d at 1155 (“[I]n the majority of cases, a consideration of fair use prior to issuing a takedown notice will not be so complicated as to jeopardize a copyright owner’s ability to respond rapidly to potential infringements. The DMCA already requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice; indeed, it would be impossible to meet any of the requirements of Section 512(c) without doing so. A consideration of the applicability of the fair use doctrine simply is part of that initial review.”). We note, 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. Cf. Hotfile, 2013 WL 6336286, at *47 (“The Court . . . is unaware of any decision to date that actually addressed the need for human review, and the statute does not specify how belief of infringement may be formed or what knowledge may be chargeable to the notifying entity.”). 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.” Brief for The Org. for Transformative Works, Public Knowledge & Int’l Documentary Ass’n as Amici Curiae Supporting Appellee at 29–30 n.8 (citing the Electronic Frontier Foundation website (link unavailable)). Copyright holders could then employ individuals like Johnson to review the minimal remaining content a computer program does not cull. See Brief for The Recording Indus. Ass’n of Am. as Amici Curiae Supporting Appellants at 15 (“[T]he RIAA has an entire department dedicated to identifying infringement and issuing takedown requests.”); see also Hotfile, 2013 WL 6336286, at *14. During oral argument Universal explained that service providers now use screening algorithms. However, we need not definitively decide the issue here because Universal did not proffer any evidence that—at the time it sent the takedown notification to Lenz—it used a computer program to identify potentially infringing content.
What does this removal mean for the Dancing Baby Doctrine? As for the “searching or intensive” language, it’s probably fair to say that the Court believed this proviso made its “fair use” holding too narrow. Its removal also provides less clarity as to how much consideration must be given to the fair use defense by the copyright holder before issuing a take down notice. As for the removal of the language regarding “implementation of algorithms,” this, too, is significant. Under the prior decision, the Court appeared to be conceptually on board with content owners harnessing technological measures to locate infringing content and to issue take down notices through the DMCA process. The removal of this language certainly raises additional questions about the propriety of that automated practice.