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Appeals Court: Fair Use Must Be Factored Into Takedowns

The Ninth Circuit Court of Appeals has ruled in the "Dancing Baby" case that content owners must take note of the potential fair use exemption before asking content to be removed from Web sites via DMCA takedown notifications.

It did so in denying both sides' request for summary judgement, but sent the signal that takedown notices can't simply be sent at the drop of a URL

The case involved a woman who posted a video of her child dancing to a Prince song and a takedown notice that Lenz and those defending the posting--and suing Universal Music over the takedown notice--said misrepresented that the posting constituted infringement.

The court held that the DMCA "requires copyright holders to consider fair use before sending a takedown notification, and that

failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law."

The court found that the "willful blindness" doctrine can be used to determine if a copyright holder knew it was a misrepresentation when it asserted its belief that the activity was not fair use.

The good news for Universal was that the court also said the plaintiffs could not proceed to trial on that ground in this case because they had not shown that the defendants believed there was a high probability it was fair use.

The court also concluded that a plaintiff can seek "nominal" damages for an injury occurring from a misrepresentation.

The Plaintiff, Stephanie Lenz, was represented by the Electronic Frontier Foundation. In 2007 she posted a 29-second video on YouTube of her kids dancing to "Let's go Crazy." Universal Music Group sent YouTube a takedown notice claiming infringement. EFF and Lenz sued, arguing that Universal "abused the DMCA by improperly targeting a lawful fair use."

“Today’s ruling sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech,” said EFF Legal Director Corynne McSherry in a statement. “We’re pleased that the court recognized that ignoring fair use rights makes content holders liable for damages.”

EFF also praised what it said was the court's rejection of the claim that "a victim of takedown abuse cannot vindicate her rights if she cannot show actual monetary loss."

Fair Use advocate Public Knowledge was pleased, though had hoped the decision would go further.

"We're extremely glad to see the appeals court uphold the idea that video creators and other uploaders can sue if their works are removed due to bogus or frivolous takedown notices," said Public Knowledge VP of legal affairs Sherwin Siy. "This means that rights holders sending notices need to actually ensure their takedown notices are not directed at fair uses, and that they face real legal consequences if they are.

"While we had hoped that the case could have provided a much clearer path for attacking bogus takedown notices, the decision still means that fair use cannot be ignored, and that the takedown process is not meant to be a one-sided affair.

Content owners represented by the Motion Picture Association of America found something positive to take away from the decision.

“While we disagree with aspects of the Ninth Circuit’s opinion," said MPAA spokesman Howard Gantman, "we are pleased that it recognized that a copyright owners’ use of automated processes to identify infringements would appear to be a ‘valid and good faith’ means of satisfying the requirements of the DMCA, including any requirement to consider fair use.  As the court acknowledged, copyright owners face a ‘pressing crush of voluminous infringing content,’ and the law must not be read to ‘jeopardize a copyright owner’s ability to respond rapidly to potential infringements.’”

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.