Dancing-Baby-2

Oh, that baby never seems to stop dancing, does he?

The U.S. Ninth Circuit Court of Appeals, en banc, has released an amended opinion and dissent in the “Dancing Baby” case aka Lenz v. Universal Music Corp, which this blog has posted plenty about previously.

For a quick recap, this case involves plaintiff Stephanie Lenz, who nine years ago posted a 29-second video on youtube.com of her then infant son dancing to Prince’s Let’s Go Crazy. Universal, which owns the song’s copyright, then used Digital Millennium Copyright Act’s take-down procedures to seek video’s removal.  The two parties have gone at in court ever since, resulting last year in the appellate opinion finding that a rights’ holder must make “a good faith inquiry” as to whether content would qualify under the Copyright Act’s fair use exception before requesting a take-down.

In its original opinion, the appellate judges included a limit that the “consideration of fair use need not be searching or intensive,” and that “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 requirement’s to somehow consider fair use.” The judges sought to explain some of the process that rights holder must perform before seeking a take-own, as well as limiting the scope of their required inquiries.

But in amending their opinion, the appellate judges have removed both those limitations. Let’s dance a little more with the revised ruling:

A stronger view on fair use 

The court seems to have strengthened fair use doctrine for infringing material online and the judges appear to have felt their earlier procedural parameters had made their holding too narrow. The legal shift is notable, because, this appellate court, as U.S. Judge Kozinski has called it, is “The Hollywood Circuit.” 989 F.2d 1512 (9th Cir. 1993), cert. denied, 508 U.S. 951 (1993).

U.S. District Judge Milan D. Smith, writing for the appellate court, took the opportunity to amend his dissent, strengthening it in vibrant language. He argued that “Universal’s policy was expressly to determine whether a video made ‘significant use’—not fair use—of the work,” and that “There is therefore no disputed issue of fact: Universal did not consider fair use before issuing a take-down notice.”

The Electronic Frontier Foundation, which had represented the Plaintiff, praised the revised ruling, stating, “For years, EFF and others have acknowledged that automated programs and filters may have a role to play the notice and take-down process. But they cannot substitute for a fair use analysis in many cases and we don’t believe that what the court intended to suggest.”

For those who wish to get granular about this case, here is the text that was removed in the amended opinion:

“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. See 391 F.3d at 1003, 1005. We are mindful of the pressing crush of voluminous infringing content that copyright holders face in a digital age. But that does not excuse a failure to comply with the procedures outlined by Congress. Cf. Lenz, 572 F. Supp. 2d at 1155 (“[I]n the majority of cases, a consideration of fair use prior to issuing a takedown notice will not be so complicated as to jeopardize a copyright owner’s ability to respond rapidly to potential infringements. The DMCA already requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice; indeed, it would be impossible to meet any of the requirements of Section 512(c) without doing so. A consideration of the applicability of the fair use doctrine simply is part of that initial 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. Cf. Hotfile, 2013 WL 6336286, at *47 (“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.”). For example, consideration of fair use may be sufficient if copyright holders utilize computer programs that automatically identify for takedown notifications content where: “(1) the video track matches the video track of a copyrighted work submitted by a content owner; (2) the audio track matches the audio track of that same copyrighted work; and (3) nearly the entirety . . . is comprised of a single copyrighted work.” Brief for The Org. for Transformative Works, Public Knowledge & Int’l Documentary Ass’n as Amici Curiae Supporting Appellee at 29–30 n.8 (citing the Electronic Frontier Foundation website (link unavailable)). Copyright holders could then employ individuals like Johnson to review the minimal remaining content a computer program does not cull. See Brief for The Recording Indus. Ass’n of Am. as Amici Curiae Supporting Appellants at 15 (“[T]he RIAA has an entire department dedicated to identifying infringement and issuing takedown requests.”); see also Hotfile, 2013 WL 6336286, at *14. During oral argument Universal explained that service providers now use screening algorithms. However, we need not definitively decide the issue here because Universal did not proffer any evidence that—at the time it sent the takedown notification to Lenz—it used a computer program to identify potentially infringing content.”