The Dancing Baby case: considering fair use before sending a copyright take-down notice – implications for Australia
There has been a lot of talk lately about the “Dancing Baby” lawsuit (a.k.a Lenz v Universal Music Corp). For those readers who haven’t heard of the case, the basic story will be relatively familiar: a video, uploaded to YouTube, was then removed pursuant what is known as a “DMCA takedown notice” following an allegation of copyright infringement raised by the copyright holder.
In the Dancing Baby Case, the US Court of Appeals for the Ninth Circuit found that prior to sending a takedown notice to a service such as YouTube, a copyright holder must consider whether or not the allegedly infringing material constitutes “fair use”. In one of the most interesting aspects of the decision, the Court found (obiter) that it was possible implement this requirement using a computer algorithm.
Some background: what is a DMCA takedown notice and who is the dancing baby?
The Notice and Takedown provisions are set out in §512 of the US Digital Millennium Copyright Act (“DMCA”). Under this procedure, an online service provider has a “safe harbour” from liability for copyright infringement of its users if it takes certain steps. These steps include complying with a notification procedure, under which the online service provider will remove allegedly infringing material on receipt of a compliant notice sent by the copyright holder.
Under §512(c)(3)(A), a takedown notice sent by the copyright holder must include a number of elements, including identification of the copyrighted work, identification of the allegedly infringing material, and importantly, a statement that the copyright holder believes in “good faith” that the infringing material is not authorised by law. Under §512(f), a person who knowingly misrepresents that material or an activity is infringing may be subject to liability.
In 2007, Stephanie Lenz uploaded a 29-second recording of her son dancing along to the Prince song “Let’s Go Crazy”. The song can be heard playing in the background. You can watch the video here. The Universal Music Group sent a takedown notice to YouTube and the video was removed. Stephanie Lenz then issued a counter-notification and the video was restored.
[Screen shot of the original Let’s Go Crazy video, available online at https://www.youtube.com/watch?v=N1KfJHFWlhQ]
However, the dispute did not end there. On Lenz’s behalf, the Electronic Frontiers Foundation sued Universal pursuant to §512(f), for misrepresenting in its takedown notice that the material was infringing when Universal had not considered whether the material was “fair use”.
What did the Court find?
The central question in the Dancing Baby case was whether a copyright holder must consider whether the allegedly infringing material constitutes “fair use” prior to sending a takedown notice. It is important to note at the outset that this was not a case about whether the video involved any copyright infringement or if the use of “Let’s Go Crazy” was in fact, “fair use”.
The Court first found that the DMCA unambiguously contemplated that “fair use” is a use that is authorised by law. Since fair use was “authorised by law”, a copyright holder must consider the application of a defence of fair use to the alleged infringement before sending a takedown notice.
The Court went on to consider whether Universal knowingly misrepresented that it had formed a good faith belief that the video did not constitute fair use. The Court held that the question of the formation of a good faith belief is subjective – what belief had Universal formed in fact about the video? The evidence was that Universal had failed to consider fair use at all, and accordingly it did not form any subjective belief about the video’s fair use. Accordingly, there was a trialable issue as to whether Universal had knowingly made a misrepresentation. The plaintiff was entitled to proceed with her case for nominal damages in the District Court.
Interestingly, while not an issue it was required to consider, the Court stated that the implementation of a computer algorithm 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 said that this may be sufficient, for example, where:
- the video track matches the video track of a copyrighted work;
- the audio track matches the audio track of that same copyrighted work; and
- nearly the entirety is comprised of a single copyrighted work.
The copyright holder could then employ individuals to review the minimal remaining content that a program does not cull.
So, does a company have to consider fair use before sending a takedown notice under Australian copyright law?
The Australian safe harbour and “notice and takedown” provision (s 116AH of the Copyright Act 1968) apply to carriage service providers, not to online content providers more generally (although this question is being considered by the government – see our previous summary here). This means that takedown notices under the Copyright Act are sent to ISPs, not to an online service provider such as YouTube.
The notice and takedown provisions have some similarities with the US legislation. Division 3A.4 to 3A.7 of the Copyright Regulations 1969 set out the prescribed procedure, which applies where the copyright holder “believes, on reasonable grounds, that the material is infringing” (reg 20G). Under Reg 20X, a person who issues a notification must not “knowingly make a material misrepresentation in that notification”. This includes a person who “does not take reasonable steps to ensure the accuracy of the information and statement included in the notification”. A person who suffers loss or damage because of a material misrepresentation may bring an action for a civil remedy against the person who issued the notification.
Australia does not have a “fair use” exception (although this was proposed by the ALRC). Rather, Australia has a series of specific exceptions, such as fair dealing for the purpose of parody or satire.
The courts in Australia have not yet considered whether there is a requirement for copyright holders to consider exceptions to infringement before sending a takedown notice, but it is certainly possible under the terms of the legislation. However, in contrast to the US law, the Australian procedure might import an objective, rather than a subjective standard for the belief that material is infringing, given the requirement for “reasonable grounds” and “reasonable steps”.
The Dancing Baby case is an important lesson against the misuse or abuse of the notice and takedown procedures. We have previously written about wrongly issued takedown notices, including for ulterior purposes here and here.
The Court of Appeals for the Ninth Circuit made fairly stern comments about copyright holders’ responsibility for takedown notices. “Copyright holders cannot shirk their duty to consider … whether allegedly infringing material constitutes fair use”. While mindful of the “crush of voluminous infringing content that copyright holders face in a digital age”, the Court said that this “does not excuse a failure to comply with the procedures outlined by Congress”.