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Notes from the Fair Use Front

Out in the Northern District of California, Judge Jeremy Fogel denied a motion to dismiss filed by Universal Music in the Lenz litigation, which was prompted by Universal’s sending a takedown notice to YouTube over a brief video posted by the plaintiff, in which a Prince song plays in the background while her son dances.  The order is here. Lenz’s lawsuit against Universal can proceed.  The video, meanwhile, remains unavailable at YouTube.

Lenz alleges that Universal misrepresented that it possessed “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,” which the complainant has to possess under Section 512 of the DMCA in order to justify a lawful takedown notice, because Universal allegedly acted on behalf of Prince, who has said publicly that he wants to control all  uses of his work online.  Lenz argued that the “good faith belief” standard requires that the complainant consider possible fair use of the copyrighted work (use which would be authorized by the law, under Section 512).  Universal argued that as a matter of law, Section 512 does not require that copyright owners consider fair use before sending takedown notices.

Judge Fogel disagreed:

The DMCA already requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice; indeed, it would be impossible to meet any of the requirements of Section 512(c) without doing so. A consideration of the applicability of the fair use doctrine simply is part of that initial review. As the Ninth Circuit observed in Rossi, a full investigation to verify the accuracy of a claim of infringement is not required. Rossi, 391 F.3d at 1003-04.

The purpose of Section 512(f) is to prevent the abuse of takedown notices. If copyright owners are immune from liability by virtue of ownership alone, then to a large extent Section 512(f) is superfluous. 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 and the counter-notification remedy does not sufficiently address these harms. A good faith consideration of whether a particular use is fair use is consistent with the purpose of the statute. Requiring owners to consider fair use will help “ensure[] that the efficiency of the Internet will continue to improve and that the variety and quality of services on the Internet will expand” without compromising “the movies, music, software and literary works that are the fruit of American creative genius.” Sen. Rep. No. 105-190 at 2 (1998).

Not only do I think that this is the right result, but I was particularly struck by this passage from earlier in the Order:

Universal also points out that the question of whether a particular use of copyrighted material constitutes fair use is a fact-intensive inquiry, and that it is difficult for copyright owners to predict whether a court eventually may rule in their favor. However, while these concerns are understandable, their actual impact likely is overstated. Although there may be cases in which such considerations will arise, there are likely to be few in which a copyright owner’s determination that a particular use is not fair use will meet the requisite standard of subjective bad faith required to prevail in an action for misrepresentation under 17 U.S.C. § 512(f).

It’s been said many times that fair use is too nuanced to support users, consumers, critics, journalists, teachers, documentarians, and scholars in their efforts to exercise legitimate rights to re-use copyrighted material, because those folks often can’t afford the time or money associated with consulting copyright counsel.  This is one of the few times I’ve seen the argument that fair use is so complicated that even a copyright owner, with full access to high-priced and highly-skilled IP counsel, can’t figure it out.  I know that corporate copyright owners often don’t engage counsel in this process; in fact, the very point of the argument is that they don’t want to and shouldn’t have to.

I’ve written here and there that the core of fair use isn’t as complex or unpredictable as its critics argue, and the “Best Practices in Fair Use” projects at AU’s Center for Social Media in part reflect that point of view.  Fair use can’t be perfectly systematized, but those projects show that a coherent view of fair use can be made accessible to non-lawyers, and that kind of coherent view is what Universal Music et al. can and should rely on in the Section 512 takedown context.  If Judge Fogel’s ruling is reviewed by the Ninth Circuit, and if it stands up, there might be a market for “Best Practices” papers for content owners, as well as for consumers, re-creators, and gatekeepers.  In my view, that would bring some public coherence to fair use on additional sides of the issue, and that would be a good thing.

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