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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