Let’s [Not] Go Crazy: Copyright Holders Should Pause Before Sending Takedown Notices

It is common for copyright holders to send Digital Millennium Copyright Act (“DMCA”) takedown notices to websites to remove material that they believe to be infringing. But few are aware that overly aggressive policing can expose them to liability (including attorneys’ fees). Universal Music, while attempting to protect the copyright in Prince’s Let’s Go Crazy, found this out in a recent opinion from the United States Court of Appeals for the Ninth Circuit in Lenz v. Universal Music Corp.

Stephanie Lenz, a mother of two, posted a 29-second video on YouTube that showed her two children running, dancing and yelling while Prince’s Let’s Go Crazy played in the background. During the video she asked her 13-month old son if he liked the music and he started bobbing up and down while holding a push toy.

Universal, which was responsible for enforcing Prince’s copyrights, had an assistant in its legal department monitor YouTube for infringement. He would search YouTube for Prince’s songs and then review responsive videos to see if they “embodied a Prince composition” through “significant use of …the composition, specifically if the song was recognizable, was in a significant portion of the video or was the focus of the video.” The Ninth Circuit noted that none of Universal’s guidelines specifically considered the fair use doctrine before determining that Lenz’s video should be included in a takedown notice sent to YouTube. After Lenz’s video was removed, however, she not only reinstated it through a DMCA counter-notification but also sued Universal for violation of 17 U.S.C. §512(f), which prohibits making a knowing misrepresentation in a DMCA takedown notice that material is infringing.

Although the district court denied summary judgment to both parties, it certified its ruling for appeal. Universal first claimed that fair use is merely an affirmative defense that excuses infringement so it did not misrepresent the infringing nature of Lenz’s video, regardless of whether Lenz chose to assert her defense. The Ninth Circuit disagreed and held that material protected by the fair use doctrine is “authorized by law,” and unambiguously “not infringing” under the relevant statute.

Falling back to the next ditch, Universal contended that it had not knowingly misrepresented its good faith belief that the video was infringing because its procedures were sufficient to take fair use into account. Lenz countered that Universal could not have formed such a belief because it never considered fair use. The Ninth Circuit found that this presented a jury question and delineated what the jury should consider in evaluating Universal’s conduct:

[I]f a copyright holder ignores or neglects our unequivocal holding that it must consider fair use before sending a takedown notification, it is liable for damages under §512(f). If, however, a copyright holder forms a subjective good faith belief the allegedly infringing material does not constitute fair use, we are in no position to dispute the copyright holder’s belief even if we would have reached the opposite conclusion. A copyright holder who pays lip service to the consideration of fair use by claiming it formed a good faith belief when there is evidence to the contrary is still subject to §512 liability.

The Ninth Circuit suggested that the copyright holder’s determination need not be “searching or intensive” and proposed that, given the amount of digital material available, a properly set up computer algorithm might suffice for evaluating the vast majority of content while humans could review the “minimal remaining content.”

It remains to be seen what automatic processes and human determinations will pass muster in the Ninth Circuit but, in the meantime, copyright holders should not go crazy with takedown notices.

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