September 15, 2015 | By Parker Higgins and Daniel Nazer

Takedown Senders Must Consider Fair Use, Ninth Circuit Rules

A federal appeals court sided with EFF yesterday on several of the major questions at issue in the long-running Lenz v. Universal copyright case. Lenz—sometimes referred to as the “Dancing Baby” case because it centers on a 29-second home video of a toddler dancing with a song by the musician Prince in the background—has long been recognized as a test of the rights enjoyed by users, and the obligations facing people who want to take down online speech.

The big takeaway of yesterday's opinion is, yes, that copyright holders must consider fair use before sending a takedown notice. But just as important is the basis of that conclusion: again today we have a federal court making it clear that fair use is not just a carve-out of the copyright system but a right on the same level of those described in the rest of the statute.

For example, the court states explicitly that “Fair use is not just excused by the law, it is wholly authorized by the law.” However well attested that principle is in the statute and in case law, it is still sometimes considered controversial. Hopefully this decision puts that debate to rest: whether the copyright holder grants permission or not, a fair use is an authorized use.

The court goes on to specify an important consequence of that fact: since fair use is authorized by the law, people enjoying their right to fair use are not infringing copyright. That's important because Universal had argued that fair use has to be considered an “affirmative defense” of otherwise unlawful conduct. The panel of judges dismantled that idea:

Universal’s interpretation is incorrect as it conflates two different concepts: an affirmative defense that is labeled as such due to the procedural posture of the case, and an affirmative defense that excuses impermissible conduct. Supreme Court precedent squarely supports the conclusion that fair use does not fall into the latter camp: “[A]nyone who . . . makes a fair use of the work is not an infringer of the copyright with respect to such use.” Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 433 (1984).

Given that 17 U.S.C. § 107 expressly authorizes fair use, labeling it as an affirmative defense that excuses conduct is a misnomer[.]

One reason this affirmation of fair use is so crucial is that it comes at a time when fair users should be enjoying new opportunities from unprecedented media tools and distribution options, but instead face similarly groundbreaking challenges and pushback from copyright holders. An interview with the video remix artist Elisa Kriesinger published just yesterday brings some of those points into focus: “Every few weeks, you are constantly having to defend your work … You thought you were clear two weeks ago, and now you’ve got to defend it again because someone else is saying that they own a portion of your work.”

In that interview, Kriesinger refers also to problems caused of algorithmic copyright enforcement, like YouTube's Content ID system. The court addressed these systems in its opinion (as dicta, which means it's expressly non-binding). Specifically, it cites a brief from the Organization for Transformative Works and Public Knowledge, which in turn refer to a joint statement of Fair Use Principles for User Generated Video Content that EFF first endorsed in 2007.

Some quick background on those principles: they were written as a response to a set of guidelines that did not consider fair use, put forward by a consortium of studios. It's a testament to how far the national conversation around fair use has evolved, that a court should cite to a set of principles for protecting that essential right—and that, in a statement released after yesterday's decision, MPAA should commend it.

For fair users, yesterday's decision has another heartening element—the court has appropriately defined the damages available to targets of takedown abuse as broader than “actual monetary loss.” In practical terms, many people who are using their fair use rights online can't easily demonstrate precise monetary costs of an improper takedown, but it can take a toll in terms of time and energy getting it restored and holding the senders accountable. It's good to see a court recognize that idea. Accepting that a broad range of harm can and should make it easier for service providers and the public to hold accountable those that would abuse the DMCA.

Yesterday’s decision is not all good news, unfortunately. Applying an older Ninth Circuit decision called Rossi v MPAA, the court suggested that, although copyright owners must consider fair use, they only need to form a subjective good faith belief that the work is not authorized by law, even if this belief is objectively unreasonable on either the law or facts at issue. Those that would use the law to silence online speech should, at the very least, be required to act reasonably. Otherwise the law perversely rewards those who fail to properly educate themselves about fair use before sending a takedown.

It took eight years of litigation to get to this point. That’s right: it took eight years to establish that record labels like Universal must consider whether your speech is legal before they try to get it taken off the Internet. We are glad to finally have this result and we hope that this ruling will lead to less takedown abuse in the future.


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