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How the “Dancing Baby” Case will Help YouTube Temper DMCA Take Downs

dancing-baby

dancing-baby

This week, there was much buzz about YouTube making a decision to spend up to $1 Million assisting some of its users from copyright and take down complaints based on the Digital Millennium Copyright Act.

Idealistically, it seems right for the social video sharing GIANT to help mold the law that enables the take down requests in the first place.

YouTube earns millions from the creative minds of YouTubers. Their content is so compelling they draw in collectively billions of views which translate into advertising revenue for YouTube as well as the creator.

It’s a partnership.

“We’re doing this because we recognize that creators can be intimidated by the DMCA’s counter notification process, and the potential for litigation that comes with it” YouTube’s Copyright Legal Director Fred von Lohmann wrote in an announcement about the new program.

“In addition to protecting the individual creator, this program could, over time, create a ‘demo reel’ that will help the YouTube community and copyright owners alike better understand what fair use looks like online and develop best practices as a community,” he says.

Yeah, sure that too.

The real other reason is because YouTube wants to help mold the legal jurisprudence and judicial interpretation of the DMCA in its favor. We’re looking at the US Supreme Court giving the final say, maybe.

The decision to fund YouTubers comes on the heels of a recent federal court decision handed down in September 2015, Lenz v. Universal.  That case flew under many people’s radar unless you work in this sector.

Background

As part of automated software that scans and identifies when a YouTube user has upload copyright content, Universal Music Publishing Group sent a notice to a mom who had uploaded a video of her toddler dancing to Prince’s “Let’s Go Crazy.

As many people know, Prince is one of those artists who fights very hard to keep his music offline.

The Electronic Frontier Foundation , a nonprofit that protects the rights and civil liberties of individuals in a digital world, took up that mom’s case and filed a suit against Universal asking a federal court to protect the fair use and free speech rights of the toddler’s mother, Stephanie Lenz, who uploaded the video.

The EFF considers Universal’s automatic, algorithm-based, take down a form of Copyright Abuse.

The notices are sent out based on an algorithm that detects usage of a copyrighted work automatically and digitally; and most of the based are sent out without a human conducting an independent review of whether the upload qualifies for Fair Use protection.

‘The Fair Use Doctrine’ to the Rescue

This September, the Ninth Judicial Circuit ruled that copyright holders must first examine the material they seek to remove and make sure it does not fall within the exceptions or exemptions of the Fair Use Doctrine.

Under this long established doctrine, anyone can use/copy a limited amount of a copyrighted work and use/copy it for “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner.

For example, a news report about a rally that includes a clip of someone reading from a copyrighted book, a parody artist sings to new made up lyrics  to the same beat of a popular song, a vlogger breaking down lyrics of a song and plays snippets of it during his vlog, would all qualify under the Fair Use Doctrine.

“The Lenz decision is a path marking case in the world of copyright law.  If a copyright holder sees unauthorized use of its content online, the natural inclination is to take appropriate steps to have that content removed (by sending a “take down” notice to the Internet Service Provider that is hosting the content, such as YouTube.com in the Lenz case).” suggests says J. Michael Keyes, an intellectual property partner at the international law firm Dorsey & Whitney. “If the Ninth Circuit decision stands, a copyright holder now must first determine if the party that posted the content has a legitimate legal defense before requesting that the material be taken down.  This is a significant development as it forces content holders to engage in a bit of copyright soothsaying before enforcing their rights.”

Lenz v. Universal

In the Lenz case, the panel of federal judges said Universal can only send take down notices BEFORE it had come a good faith conclusion that the targeted upload is not a protected fair use of the copyrighted work.

“Copyright holders cannot shirk their duty to consider — in good faith and prior to sending a takedown notification — whether allegedly infringing material constitutes fair use, a use which the DMCA plainly contemplates as authorized by the law,” the appeals court wrote. “That this step imposes responsibility on copyright holders is not a reason for us to reject it.”

The Court then sent the case back down to the trial level but not without giving Universal a little win too.

The judges recognized that the reason Universal uses algorithms to detect copyrighted works of their artists, is because of the volume of uploads on sites like YouTube.

“We note, without passing judgment, 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,” the court wrote.

The Gimme: Expansion of “Safe Harbor” Protection?

The Ninth Circuit also left open a HUGE path for future complaints against Universal and other companies like it that send out DMCA complaints using automation.

The panel also interpreted the DMCA also confers rights to those who have have received copyright DMCA notices going forward. They can bring their own law suit if the copyright owner knowingly misrepresented that it had a good faith belief that the work was infringed.

Boom!

Section 512 is the part of the law that protects conduits like YouTube, Google’s Blogger, and Facebook that only provide a platform but otherwise, don’t have anything to do with the infringement, from being held liable too.

This section is considered a “safe harbor” to protect third parties like YouTube.

Without these protections the risk of potential copyright liability would prevent many online intermediaries from providing services such as hosting and transmitting user-generated content, EFF writes on its website page about DMCA.

YouTube, if it wants now, can battle the recording industry which is notorious for slamming everyday users with DMCA complaints.

If enough cases go to the top and even if there are some losses, there could be a split among the Circuit Court cases, making it likely that the US Supreme Court could hear the case.

A favorable win there would be a GIANT Victory for YouTube users and Google and Team Internet. They’d have more flexibility to create even more services and could spend less time dealing with DMCA-related copyright complaints. Right now, if YouTube receives the DMCA, it takes down the video and dings the member with a threat to revoke their right to use the service.

“What this decision means from a practical point of view is that anytime content owners see the unauthorized use of their content online (for example music, videos, etc) they will want to carefully consider their options before demanding that the content be removed,” says  Keyes,  “If the party that posted the content has a reasonable argument that it’s use of the content was “fair” (I.e. That the poster was commenting on the work or engaged in some sort of educational endeavor) the copyright holder faces the specter of a claim for damages if a take down notice is sent.”

YouTube has interest too in shaping the DMCA so that it is less restrictive on its users and limit its “safe harbor” responsibility under the Copyright Act.

I’m not mad, I’ll keep track of this case and update this post as the litigation proceeds.

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