Let’s Not Go Crazy Here: The Dancing Baby and Fair Use

Stephen Carlisle September 17, 2015

On September 14, 2015, the Ninth Circuit Court of Appeals issued its opinion in the closely watched case of Lenz v. Universal Music Group, ¹ but more widely known as “the dancing baby case.” As with many opinions from the Ninth Circuit, what we got was a head scratching, confusing opinion that in the final analysis changes almost nothing.

The facts are simple and undisputed. The nominal Plaintiff Stephanie Lenz, posted to YouTube a 29 second video of her baby dancing to Prince’s song “Let’s Go Crazy.” Screeners for Universal Music Group flagged the video, and after watching the entire video, concluded that it used a substantial portion of the Prince song, and issued a takedown notice. ² Lenz sent a defective counter-notice to YouTube, ³ and later, egged on by the Electronic Frontier Foundation filed a compliant counter-notice. ⁴ YouTube then reinstated the video. ⁵ A complaint was filed in Lenz’s name, which claimed tortious interference and sought declaratory relief, which was promptly dismissed. ⁶ The amended complaint alleged only a claim for misrepresentation under section 512(f) of the Copyright Act.

The relevant portion of Section 512(f) states:

“Misrepresentations.—Any person who knowingly materially misrepresents under this section—

• that material or activity is infringing…shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer…”

It is worth noting at the outset that Lenz is not the real Plaintiff here. As reported by cnet.com, she stated “’I don’t care that YouTube doesn’t want to host it [my video],’ Lenz wrote to one associate, according to court documents. ‘Not like I’m paying them.’” ⁷ She suffered no real monetary loss and is being represented pro bono by the Electronic Frontier Foundation. So the real Plaintiff here is the Electronic Frontier Foundation. Lenz herself is just a straw person. Again, as reported by cnet.com:

“[A]nother [Lenz] missive included this passage ‘EFF is pretty well salivating over getting their teeth into UMG yet again.’” ⁸

The American Bar Association also reported that Lenz stated that the EFF was planning a “publicity blitz and/or a lawsuit against Universal.” ⁹

So extensive were her careless comments that trial judge ruled that she had waived her attorney-client privilege with the EFF, and ordered them to turn over their correspondence with Lenz to UMG. ¹⁰ The EFF turned over so few documents that UMG filed a motion for contempt of court. ¹¹ The current status of that motion is unknown.

The case on appeal has a very unusual posture. The District Court denied both sides’ motions for summary judgment, but instead of proceeding to trial, the District Court stayed the proceedings and allowed both sides to appeal, ¹² to consider the question: In issuing a DMCA takedown notice, does the complaining party have to consider fair use?

The Ninth Circuit has concluded that fair use must be considered in the takedown process. Yet how they got there is incredibly convoluted, and the end result is that it changes next to nothing.

Faithful readers of this blog know that fair use is an affirmative defense, for which the defending party bears the burden of proof. ¹³ Here, the Court admits as much, but then tries to twist fair use from an affirmative defense to a protected “right.”

“Universal’s sole textual argument is that fair use is not “authorized by the law” because it is an affirmative defense that excuses otherwise infringing conduct. Universal’s interpretation is incorrect as it conflates two different concepts: an affirmative defense that is labeled as such due to the procedural posture of the case, and an affirmative defense that excuses impermissible conduct. Supreme Court precedent squarely supports the conclusion that fair use does not fall into the latter camp: “[A]nyone who … makes a fair use of the work is not an infringer of the copyright with respect to such use.” Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 433, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984).”

The problem here is the Supreme Court quote does not really support the point for which it is being cited. In fact, ten years later, the Supreme Court plainly stated just the opposite.

“It is uncontested here that 2 Live Crew’s song would be an infringement of Acuff–Rose’s rights in “Oh, Pretty Woman,” under the Copyright Act of 1976, 17 U.S.C. § 106 (1988 ed. and Supp. IV), but for a finding of fair use through parody.” ¹⁴ Succinctly put, fair use is a classic affirmative defense, a “yes, but.” Yes, I copied, but I did it for a good reason which did not really harm you.

So, the entire underpinning of the Ninth Circuit’s reasoning is just flat out wrong. I don’t know how they missed it. The Court cites to the Acuff-Rose in the body of their opinion, but fail to read that rather important passage. I was able to find that quote rather quickly and without the luxury of a law clerk.

Now, having wrongly decided that fair use is a “right” and not an affirmative defense, the Court whips out its magic wand and creates out of thin air a brand new “right” that appears nowhere within the text of Section 512(f).

“Even if, as Universal urges, fair use is classified as an “affirmative defense,” we hold—for the purposes of the DMCA—fair use is uniquely situated in copyright law so as to be treated differently than traditional affirmative defenses. We conclude that because 17 U.S.C. § 107 created a type of non-infringing use, fair use is “authorized by the law” and a copyright holder must consider the existence of fair use before sending a takedown notification under § 512(c).”

This is madness. Fair use is a murky concept at best, which defies quick fixes and bright line rules. How is a copyright holder supposed to decide whether any particular use is fair use or not, where there are no guidelines, no bright line rules and every case is different? Secondly, how can the Court properly charge a copyright holder with the responsibility of making a defending party’s affirmative defense for them?

Perhaps realizing this, the Court quickly backs away from the precipice, and burdens the “consideration of fair use” rule with so many loopholes that it immediately becomes nearly meaningless.

First, the Court holds consideration of fair use that the copyright holder must engage in is “subjective,” and that the Courts should not second guess it.

“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.” ¹⁵

“In order to comply with the strictures of § 512(c)(3)(A)(v), a copyright holder’s consideration of fair use need not be searching or intensive. We follow Rossi’s guidance that formation of a subjective good faith belief does not require investigation of the allegedly infringing content.” ¹⁶

Next, the Court rules that the fair use consideration can be done by automated means, and does not require human review.

“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. (Citation omitted) (‘The Court … is unaware of any decision to date that actually addressed the need for human review, and the statute does not specify how belief of infringement may be formed or what knowledge may be chargeable to the notifying entity.’)” ¹⁷

So, as long as the copyright holder has any basis for determining that the work is infringing and not fair use, that view is subjective and not subject to judicial second guessing.

This is not what the EFF wanted. What they wanted was a hard objective standard with respect to legal determinations. ¹⁸ In other words, that if someone felt that a use was not fair but was later over-ruled by a Court, that an erroneous or mistaken belief by a copyright owner would create legal liability. The Court called that position “untenable,” ¹⁹ and quoted a previous Ninth Circuit decision in the case of Rossi v. Motion Picture Association of America. ²⁰

“In §512(f), Congress included an expressly limited cause of action for improper infringement notifications, imposing liability only if the copyright owner’s notification is a knowing misrepresentation. A copyright owner cannot be liable simply because an unknowing mistake is made, even if the copyright owner acted unreasonably in making the mistake. Rather, there must be a demonstration of some actual knowledge of misrepresentation on the part of the copyright owner.” ²¹

The Court did hold that if Lenz ultimately proved to be the prevailing party, that she could seek “nominal damages.” ²² As recounted above, Lenz has stated she doesn’t care whether her video stays up on YouTube or not, and the EFF is representing her pro bono. The trial court has already ruled that she is eligible to recover only $1,275.00, the value of pre-suit legal advice given by the EFF, and such other items of a minimal amount, such as the cost of electricity for running her computer and her phone bills. ²³ A drop in the bucket for a case that took eight years to litigate, and is not over yet.

The effect of the ruling going forward is likely to be negligible. Jonathan Bailey, who runs the website Plagiarism Today, also runs a service that sends out takedown notices. He states “…relatively small filers such as myself aren’t drastically likely to feel any impact. The reason is because we already weigh fair use when filing DMCA notices. Either we’re dealing with clear non-fair uses, such as outright piracy, revenge porn or widespread verbatim plagiarism, or cases that can be trivially shown to not be a fair use.” ²⁴

This blog has already recounted that the amount of so called “abusive takedowns,” the kind most likely to be affected by this ruling, is miniscule in the face of the hundreds of millions of valid takedowns served annually on Google alone. ²⁵ The Court in Lenz acknowledged this when it stated “[w]e are mindful of the pressing crush of voluminous infringing content that copyright holders face in a digital age,” and then expressly approved automated review using computer algorithms. ²⁶

Again, not much changes.

What the case may change are other issues within the DMCA notice and takedown process. This blog has previously criticized Google for denying a takedown request under their belief that the targeted material was fair use. ²⁷ There is nothing within section 512 that gives them that right. Now it should be clear that since a fair use analysis has already been performed, Google has no right to second guess that analysis, because a reviewing Court cannot second guess the reasoning under the clear terms of this decision.

And finally, the need for automated review is due precisely to the “pressing crush of voluminous infringing content” on the internet, a problem made exponentially worse by the “whack-a-mole” problem of continuously having to re-serve takedown notices on the same infringing content. If section 512 were amended to provide for “takedown and stay down” as I have repeatedly advocated on this blog, ²⁸ the number of faulty takedown notices would be greatly reduced.

So let’s NOT go crazy here. Very little has changed.