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Takedowns, fair use and dancing babies: Long-running copyright dispute fuels more debate

By | Published on Wednesday 16 September 2015

Copyright Education

At a very interesting session hosted by Cue Songs last night exploring how the music industry can better work with the relatively small community of YouTube stars who are now ‘the mainstream media’ for a certain demographic, one prolific YouTuber admitted that many creators on the video platform now fear the dreaded takedown alert on their account, because too many can result in channel suspension, and that means pay day is cancelled. Which is why clued-up YouTubers now only use production music where, hopefully, there will be no room for dispute.

Which is an interesting insight, especially as the legal community works out what a ruling in the Ninth Circuit Court Of Appeals in the US this week means for the way music companies use the takedown system provided by America’s Digital Millennium Copyright Act to order videos that contain their songs or tracks without permission be removed from the internet, and especially YouTube.

The court was considering the long, long running ‘dancing baby case’, which is amazingly still going through the motions. In 2007, Stephanie Lenz posted to YouTube a video of her toddler dancing to the 1984 Prince hit ‘Let’s Go Crazy’. Universal Music Publishing, as publisher of the song, issued a takedown notice, because the video used the work without permission.

This sparked a long running debate over whether or not merely having the song playing in the background of Lenz’s video actually constituted ‘fair use’ under US copyright law – so that no permission was required – and whether or not Universal should have considered fair use before issuing a takedown. And if hadn’t, was that a misuse the DMCA takedown system? Universal, backed by the record and movie industries, stood its ground. Lenz, repped by the Electronic Frontier Foundation and backed by big tech, fought her corner.

The latest appeal court ruling on the dispute in theory provides some clarification, though with plenty of room for interpretation, which is always fun. Basically, said the court, an American rights owner must consider whether the unauthorised use of their content in a video constitutes fair use before issuing a takedown. If it is fair use, said rights owner must then refrain for issuing any notice. And it must be proper consideration thank you very much, no mere “lip service” to the system. Though, if the rights owner decides the video isn’t ‘fair use’, well that’s fine, even if the court disagrees. So, that’s nice and clear then.

Well, the Ninth Circuit thinks it’s clear. “To be clear”, it stated. “If a copyright holder ignores or neglects our unequivocal holding that it must consider fair use before sending a takedown notification, it is liable for damages. 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. [But] a copyright holder who pays lip service to the consideration of fair use by claiming it formed a good faith belief when there is evidence to the contrary is still subject to liability”.

While the rights owner’s consideration must do more than just pay lip service to ‘fair use’, it “need not be searching or intensive” and “does not require investigation of the allegedly infringing content”.

So there you go. The court then mused about the fact that a lot of takedown issuing is now automated, and how could that automated process rule on something as nuanced as fair use? Though, after providing a few thoughts, the court didn’t make any solid ruling on that element of the debate, because in the Lenz case a real human being at Universal issued the takedown.

And there you have it. It remains to be seen how the Lenz case itself proceeds, and more so whether any of this will have any impact on the way rights owners go about issuing takedown notices, in this era where a misplaced takedown can do more than just deprive the world of a cute dancing baby, but actually cut off a creator’s livelihood.

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