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Wednesday, September 16, 2015

Court Finds That Copyright Holders Are Required To "Consider Fair Use" Before Filing DMCA Takedowns


In a ruling made today, the United States Court of Appeals for the Ninth Circuit determined that before a copyright holder files a DMCA takedown notice, they must first "consider" whether the content being targeted is using the copyrighted material in fair use. If the copyright holder fails to do this, the individual who receives the DMCA takedown can take the accusing entity to court for nominal damages--even if the individual can't show that the takedown has cost them income.

What does this mean, exactly? Well, understanding the particular case in question helps to illustrate the ruling. In 2007, Stephanie Lenz made a 29-second video of her children dancing along to the Prince song "Let's Go Crazy." Universal Music Group sent YouTube a DMCA takedown notice, which stated that the video infringed on UMG's copyright because neither Lenz nor YouTube "were ever granted license to reproduce, distribute, publicly perform, or otherwise exploit" the song. But the takedown did not say anything about fair use, and this is the key to Lenz's case: She (and her lawyers from the Electronic Frontier Foundation) successfully argued that UMG needed to explain in the takedown why her video wasn't fair usage of the Prince song. UMG argues that they did make that consideration (the company claims that it examined everything from the volume of the Prince song to the quality of shot composition before making the DMCA claim), but this wasn't reflected in the actual takedown. Because of this, the takedown was not made in good faith, and therefore Lenz is within her rights to take UMG to court.

It's easy to see why people who make all sorts of video content might see this and hope that it will mean a little safety from flippant DMCA claims. The old system was nearly automatic: Detect copyrighted material, push a button and submit a takedown. Because copyright holders will now need to show their work and prove that they considered the possibility that a video might have incorporated the copyrighted material in fair use, the rate of DMCA takedowns could slow down. But there are two big reasons that I'm skeptical that this will really be a game changer for online content creators.

First: While DMCA claims now require that takedowns include "consideration of fair use," there's still a chance that YouTube, Twitch, and other video services won't require copyright holders to make that consideration when they send in a notice. These services could decide to self-police their platforms in an effort to maintain good relationships with media companies. This already happens: You can see it any time that Twitch posts a message saying that they will ban any streamer who breaks street date on a major game. Decisions like that are made in anticipation of DMCA takedowns, but are done voluntarily. Sure, there's a chance that the extra requirements on copyright claims will embolden video services and encourage them protect their content creators... but given the past, I have my doubts.

Second: The majority opinion for the case notes that YouTube's automated "Content ID" system counts as "considering fair use." Judge Tallman writes 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." Content ID and similar algorithmic solutions identify copyrighted content and report on particulars of usage: Does a copyrighted song make up the majority of a video's audio track? Is there deviation in video content? I get the impression that systems like Content ID (which rolled out in 2010) were specifically built in response to cases like these, and their complexity increases every year.

While I don't think that this case provides a large degree of safety for live streamers and let's players, I don't want to totally dismiss this ruling entirely. Even if it's a small step towards fairer copyright rules and processes, it's still a step. The court suggests that while the majority of potentially infringing content could be handled by automated systems, copyright holders should also have individuals on staff to review the edge cases. Maybe that would at least protect folks from the most trollish of copyright claims. In any case, there's still a long way to go in the fight for better copyright laws, but this ruling helps to illustrate the sort of imbalances and difficulties that creators face when utilizing copyrighted material in their own content.

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