In Lenz v. Universal Music Corp., Nos. 13-16106, 13-16107, U.S. App. LEXIS 16308 (9th Cir. 2015), the Ninth Circuit dealt with an issue of first impression, whether fair use is an “authorization under the law” as contemplated by 17 U.S.C. 512(c)(3)(A)(v). Lenz U.S. App. LEXIS 16308 at 12; Limitations on Liability Relating to Material Online, 17 U.S.C. 512(c)(3)(A)(v) (2015). The court held that §512(c)(3)(A)(v) does require the copyright holders to consider fair use before sending a takedown notification. Lenz U.S. App. LEXIS 16308 at 4. Part of the court’s reasoning in reaching this conclusion was that “17 U.S.C. § 107 created a type of non-infringing use.” Id. at 17.
The court in Lenz goes on to establish a framework copyright holders can use to satisfy this requirement. The question addressed here is whether this “new” rule will change the process copyright holders use when requesting takedowns under §512.
What was Lenz About?
Lenz involves a video that was uploaded to YouTube in 2007. Id. at 5. At that time Universal’s process for identifying infringing works by Prince involved a person, Johnson, monitoring YouTube on a daily basis. Id. at 6. Johnson would search for Prince’s songs on YouTube and review the videos that the search returned. Id. The evaluation in general considered whether “‘the composition was the focus’” and if it was they would notify YouTube to remove the video. Id. The video in question was 29 seconds long, however it had one of Prince’s songs playing loudly in the background throughout the video. Id. at 7. Based on this, the title of the video, and the dialogue in the video, Johnson concluded that the Prince song was the focus of the video, and he requested that it be taken down. Id.
Taking down this video led to a series of events culminating in Lenz filing a second amended complaint, which alleged only a claim for misrepresentation under §512(f). Lenz at 8. Both parties moved for summary judgment on this claim and the district court denied both motions in an order for interlocutory appeal under 28 U.S.C. §1292(b). Id. at 9. Thus, the Ninth Circuit Court of Appeals in Lenz was reviewing cross-motions for summary judgment on the issue of a claim for misrepresentation under §512(f). Id.
What does this mean for §512 Takedown Procedures?
The takedown procedure is established by §512(c)(3). Essentially, the copyright owner or the owner’s authorized agent must send a written communication to the designated agent of a service provider, which provides: a signature of the authorized person; identification of the work claimed to be infringed upon; identification of the allegedly infringing material, along with “information reasonably sufficient” to locate it; the complaining party’s contact information; the “good faith belief” statement explained below; a statement that the notification is factually accurate, and a statement under penalty of perjury that the complaining party is authorized to act on behalf of the copyright owner. 17 U.S.C. 512(c)(3) (2015). After receiving notice of claimed infringement that complies with §512(c), the service provider must respond expeditiously to takedown the material that is claimed to be infringing or they lose the safe harbor §512 provides. Id. 512(c)(1)(C).
The issue in Lenz involved misrepresentation under §512(f). The relevant part of section 512(f) is: “Any person who knowingly materially misrepresents under this section–(1) that material or activity is infringing . . . Shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer . . .” 17 U.S.C. 512 (2015).
The alleged misrepresentation in Lenz occurred under §512(c)(3)(A)(v), which is one of the elements of notification mentioned above. Section 512(c)(3)(A)(v) states: “A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” 17 U.S.C. 512 (2015).
The Ninth Circuit’s holding was that “authorized by . . . law” includes fair use. Lenz at 17. Thus, for a party to have a “good faith belief that use of the material in the manner complained of is not authorized by . . . the law” that party must consider fair use. Id.
When Are Copyright Owners Liable?
“[T]he ‘good faith belief’ requirement in § 512(c)(3)(A)(v) encompasses a subjective, rather than objective standard.” Rossi v. Motion Picture Ass’n of Am. Inc., 391 F.3d 1000, 1004 (9th Cir. 2004). Liability is imposed under §512(f) “only if the copyright owner’s notification is a knowing misrepresentation.” Rossi at 1004-05.
A copyright owner cannot be liable simply because an unknowing mistake is made, even if the copyright owner acted unreasonably in making the mistake. Rather, there must be a demonstration of some actual knowledge of misrepresentation on the part of the copyright owner. Id. at 1005.
Thus, a copyright holder “faces liability if it knowingly misrepresented in the takedown notification that it had formed a good faith belief the video was not authorized by the law, i.e., did not constitute fair use.” Lenz at 19. If a copyright holder sends out a takedown notification without considering fair use, or “[claims] it formed a good faith belief when there is evidence to the contrary” it is liable for damages under §512(f). Id.
However, if a copyright holder does form a “subjective good faith belief” that there was no fair use, then that belief is valid for satisfying §512(c)(3)(A)(v) regardless of whether the court agrees with that belief. Lenz at 19.
The court also holds that “the willful blindness doctrine may be used to determine whether a copyright holder ‘knowingly materially misrepresent[ed]’ that it held a ‘good faith belief’ the offending activity was not a fair use.” Lenz at 23.
“Automatic” Fair Use Check?
Recognizing the “pressing crush of voluminous infringing content that copyright holders face in a digital age” the court does not require an “intensive” consideration of fair use or an “investigation of the allegedly infringing content.” Lenz at 21. The court suggests that a computer algorithm could be used to process infringing content while still meeting the requirements for good faith consideration of fair use. Id. at 22. Moreover, the court suggests, in dicta, that the fair use requirement may be sufficiently considered 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.’” Id. at 22; quoting 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)). Then, as a second step, humans could review “the minimal remaining content a computer program does not cull.” Id. at 22.
Is this really different?
This holding seems to add an extra step to the process that copyright holders had been using before, at least nothing in the case suggested it was an industry standard to check fair use. However, the court’s suggested computer algorithm could be construed as only checking one prong of the fair use doctrine (“the amount and substantiality of the portion used in relation to the copyrighted work as a whole”). Lenz at 22; Limitations on Exclusive Rights: Fair Use, 17 U.S.C. §107(3) (2015). This suggests that the “good faith belief” investigation for fair use does not have to be that intensive; rather it is likely that existing screening algorithms already do something substantially similar to what the court suggests in its dicta.
In his partial dissent Judge Smith suggests that current computer programs are not capable of analyzing fair use, because they would have to be able to apply each factor in 17 U.S.C. § 107 (2015). Lenz at 38-9 n.3. It does seem doubtful that any currently existing computer algorithm could determine “the effect of the use upon the potential market for or value of the copyrighted work,” Id. § 107(4). This may mean that the majority opinion is not interpreting a “good faith belief that use of the material in the manner complained of is not authorized by . . . the law” to require explicitly analyzing every factor of fair use.
Would the procedures Universal used satisfy this?
Even though the methods used in 2007, when this case arose, did not “explicitly include consideration of the fair use doctrine,” one could argue that they would satisfy the “subjective good faith belief” requirement. Lenz at 7. The 2007 method looked to the amount of the copyrighted work used, and whether the video “embodied” the copyrighted work, which seems similar to a 17 U.S.C. §107(3) analysis for “amount and substantiality” and a 17 U.S.C. §107(1) analysis of the “purpose and character of the use”. Lenz at 6; 17 U.S.C. §107 (2015). Moreover, in the context of YouTube videos and copyrighted songs, the second prong of the fair use analysis (“The nature of the copyrighted work”) would arguably be against fair use. 17 U.S.C. §107 (2015). The fourth prong (“the effect of the use upon the potential market for or value of the copyrighted work”) could arguably be considered to involve too intense of an investigation. Id. Therefore, it would seem that the methods in use in 2007 would satisfy the Ninth Circuit’s holding. Now, Universal does use screening algorithms; so Universal may actually use the method the court suggested. Lenz at 23.
Are the infringers that this ruling affects relevant?
While fair use may be a consideration in a YouTube video like the one in Lenz that does not include the full song, or has something else going on in the video; for sites like BitTorrent that distribute the copyrighted works in their entirety, a consideration of fair use would probably not be very intensive. So, considering that these file-sharing sites are the “main piracy concerns” of the Recording Industry Association of America, it doesn’t seem that a fair use requirement matters that much. Blake Brittain, ‘Dancing Baby’ Ruling Leaves Copyright Concerns in Its Wake, Bloomberg (Nov. 2, 2015), https://www.bloomberglaw.com/document/XB4FLOG0000000.
The Ninth Circuit’s holding in Lenz v. Universal Music Corp. that §512(c)(3)(A)(v) does require the copyright holders to consider fair use before sending a takedown notification is tempered by the holding that liability under §512(f) (in this fair use context) is imposed only if the copyright holder “knowingly misrepresented in the takedown notification that it had formed a” subjective “good faith belief” that the material was not authorized under fair use. Rossi at 1004-05; Lenz at 19. The court’s language here is broad, and as explained above the copyright holders current methods are likely protecting them from this liability. The court is not requiring the copyright holders to prove that there is no fair use before requesting a takedown, nor does the court have to agree with the copyright holders’ belief. Lenz at 19. Therefore, it does not seem that this ruling will drastically affect copyright holder’s current infringement analysis.