Fair Use Gets A Boost

The Digital Millennium Copyright Act (“DMCA”), codified at 17 U.S.C. § 512(c), (f) and (g), allows service providers like YouTube to avoid copyright infringement liability for storing users’ content if, among other things, the service provider “expeditiously” removes or disables access to the content after getting a notification from a copyright holder that the content is infringing.

On February 7, 2007, Stephanie Lenz posted a 29-second video on YouTube of her two small children dancing in their kitchen to Prince’s Let’s Go Crazy. Universal Music, which served as Prince’s publishing administrator for enforcing his copyrights, sent YouTube a takedown notice claiming that Lenz’s video infringed Prince’s copyright in his song. YouTube removed the video. Lenz then sued Universal, alleging that its takedown notice violated the DMCA.

Section 512(c)(3)(A)(V) of the DMCA requires that a takedown notification include a “statement that the complaining party has a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” Lenz asserted that her use of Prince’s song was a fair use and therefore authorized by the Copyright Act, 17 U.S.C. § 101 et seq.

In reviewing the trial court’s denial of the parties’ cross-motions for summary judgment, the Ninth Circuit addressed the question of whether fair use is a use “authorized … by law” that a copyright owner must consider prior to requesting that a service provider take down content. Lenz v. Universal Music Corp., 801 F.3d 1126 (9th Cir. 2015).

The Ninth Circuit’s answer: “Fair use is not just excused by the law[,] it is wholly authorized by the law ….” 801 F.3d at 1132. The Court noted that under the Copyright Act, at 17 U.S.C. § 107, “the fair use of a copyrighted work, … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” Id.

The Copyright Act provides that in determining whether a use is fair, a court should look at four factors: 1) the purpose and character of the use, 2) the nature of the copyrighted work, 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and 4) the effect of the use on the potential commercial value of the copyrighted work. 17 U.S.C. § 107.

Most commentators have viewed fair use as an affirmative defense to a claim of copyright infringement—a shield, rather than a sword. The Ninth Circuit said it is not that simple. Fair use is “‘better viewed as a right granted by the Copyright Act of 1976. Originally, as a judicial doctrine without any statutory basis, fair use was an infringement that was excused…. As a statutory doctrine, however, fair use is not infringement…. [I]t is logical to view fair use as a right.’” 801 F.3d at 1133, quoting Bateman v. Mnemonics, Inc., 793 F.3d 1532, 1542 n.22 (11th Cir. 1996). This interpretation is also supported by the U.S. Supreme Court, which has stated that “anyone 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 (1984).

Noting that “fair use is uniquely situated in copyright law,” the Ninth Circuit held that it is “authorized by the law” for purposes of section 512(c). 801 F.3d at 1133. Thus, a copyright holder must consider the existence of fair use before sending a takedown notification to a service provider. Dancing babies everywhere rejoice!

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