In the closely-watched “dancing baby case,” the Ninth Circuit ruled this morning that copyright owners must consider the fair use doctrine before sending a takedown notice under the Digital Millennium Copyright Act (DMCA).  Lenz v. Universal Music Corp., et al., Nos. 13-16106, 13-16107 (9th Cir. Sept. 14, 2015).  The case concerns a 29-second video the plaintiff posted to YouTube of her two children dancing to Prince’s song Let’s Go Crazy, which she titled, “‘Let’s Go Crazy’ #1”.  Universal Music Corp. (Universal) sent YouTube a takedown notice under the DMCA based on plaintiff’s use of Prince’s song, claiming it infringed on Universal’s copyright in Prince’s composition.  The plaintiff sued Universal under Section 512(f) of the DMCA, alleging that Universal misrepresented in its takedown notice that her video infringed on its copyright.  The district court denied the parties’ cross-motions for summary judgment on the issue of plaintiff’s Section 512(f) claim and certified its order for interlocutory appeal.

The DMCA allows service providers, e.g., YouTube or Google, to avoid liability for copyright infringement for storing users’ content if, among other things, the service provider “expeditiously” removes or disables access to the content after receiving a takedown notice from a copyright owner that the content is infringing on their copyright.  17 U.S.C. § 512(c).  As a required element of the takedown notice, the copyright owner must state that it “has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” Id. § 512(c)(3)(A)(v) (emphasis added).  Section 512(f) states that, “[a]ny person who knowingly materially misrepresents under this section . . . that material or activity is infringing . . . shall be liable for any damages . . . .”  Id. § 512(f).

The Ninth Circuit is the first circuit to address the issue of whether fair use is contemplated by the statute when it refers to a use that is “not authorized by . . . the law.”  In finding that the statute did contemplate fair use, the Ninth Circuit held that:

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.  That this step imposes responsibility on copyright holders is not a reason for us to reject it.

In determining whether the copyright owner had formed a good faith belief as to the issue of fair use, the central determination is whether the copyright owner formed a subjective good faith belief that it was not fair use, not whether a court would adjudge the content as fair use.

The Ninth Circuit only briefly addressed the logistics of media companies making fair use determinations on a large-scale, acknowledging the “pressing crush of voluminous content that copyright holders face in a digital age,” and stating that the process for checking whether the content is entitled to fair use protection “need not be searching or intensive.”  The court further noted 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.”  The Ninth Circuit did not address the difficulty courts have had in determining what exactly qualifies as fair use, which is made on a case-by-case determination.

Notably, the court’s ruling today did not find that Universal had violated Section 512(f) and the case will now go back to the district court for a jury to determine whether Universal considered fair use before sending its takedown notice and, if so, whether its actions were sufficient to form a subjective good faith belief that the video was not fair use.

The full opinion can be accessed here