It just became a little harder to force someone to take copyrighted videos off YouTube, after a ruling from a three-judge panel in California found that before filing a removal notice, copyright holders must consider whether the way their intellectual property is used could be considered “fair use” under US law.
Further, according to Monday’s decision from the ninth circuit court of appeals, if an entity misuses legal takedown notices, it is taking a financial risk of its own.
A “plaintiff may seek recovery of nominal damages for an injury incurred as a result of a ... misrepresentation,” wrote judge Richard C Tallman, in a decision that authorizes the Electronic Frontier Foundation (EFF) to move forward with a 2007 lawsuit against Universal music on behalf of YouTube user Stephanie Lenz. “Fair use is not just excused by the law, it is wholly authorized by the law.”
Lenz v Universal Music is often referred to as the “dancing baby” case; in 2007, Lenz videotaped her 13-month-old bobbing up and down to Prince’s Let’s Go Crazy and later received a digital millennium copyright act (DMCA) takedown notice from Universal.
Lenz then did something rarely done by recipients of takedown notices: she sent YouTube a counter-notice saying that her video didn’t violate copyright and didn’t misuse Universal’s intellectual property, and that she was going to put it back up. She reposted the video, YouTube did not take it down, and it has now been viewed more than 1.4m times.
The EFF sued Universal for misrepresentation on Lenz’s behalf, alleging that the company had misused the DMCA notice to appease Prince.
“One thing that’s often overlooked is that for a site like YouTube or any other user-generated content site, complying with takedown notices is optional,” said Mitch Stoltz, senior staff attorney for EFF. “The law doesn’t require it. The law creates an incentive for it, because then they’re not liable if they get sued, but they could also choose to go to bat for their users.”
Lenz alleged that Universal only sent her a takedown notice because Prince had spoken publicly about wanting to sue YouTube and eBay. At the time, YouTube was locked in litigation with Viacom over the hosting of many hours of Viacom content, notably the Comedy Central series The Daily Show and South Park.
Universal claims that if it loses the lawsuit, it will also lose the ability to swiftly react to copyright violations.
YouTube’s adoption of a zero-tolerance policy for uploads of movies and TV episodes is a part of the reason the company no longer regularly locks horns with corporate rightsholders like Viacom. But it is still the target of many complaints from musicians and their representatives, notably the threat of a $1bn suit from music industry executive Irving Azoff, covering songs written by everyone from the Gershwins to the Eagles.
Though the suit has dragged on since 2007, courts have consistently ruled in favor of Lenz, noting danger in the presumption of guilt on the part of anyone against whom a DMCA notice is filed.
“As Lenz points out, the unnecessary removal of non-infringing material causes significant injury to the public where time-sensitive or controversial subjects are involved,” wrote Jeremy Fogel, a judge who declined to dismiss the lawsuit in 2008.
This article was written by Sam Thielman, for theguardian.com on Tuesday 15th September 2015 20.51 Europe/Londonguardian.co.uk © Guardian News and Media Limited 2010