About a week ago, the Ninth Circuit court made a ruling concerning DMCA policies and takedown notifications utilized on sites like YouTube, app stores, etc. Here is a brief summary of the major points:
- The court found that Universal was in violation of 512(f), a statute which prohibits misrepresentation by a copyright holder when issuing a takedown notice.
- Fair use is legal use, but it doesn’t excuse illegal copyright infringement.
- The Ninth Circuit Court’s decision runs contrary to other circuit court decisions.
The Fair Use Analysis
Lenz doesn’t actually bring the fair use analysis into the ruling itself, nor did it rule one way or another on whether the “Let’s Go Crazy #1” video constituted fair use. That wasn’t the question presented to the Court. Instead, the Court offered some guidance on the manner copyright owners must consider the fair use analysis when issuing takedown notices.
The rest of the detailed summary of judgment can be found here: http://www.gamasutra.com/blogs/MonaIbrahim/20150917/253803/The_Games_Industry_Under_the_New_Lenz_of_Fair_Use.php
Although, I want to focus on this particular tenant, because I feel this is relevant to the automated systems of Content I.D. matching and claiming on Youtube.
A Copyright holder’s consideration of fair use need not be searching or intensive. The court proposed that a computer algorithm setting standards based on the four factor test and individual review of those that aren’t culled through the automated system would be sufficient.
Even though prior to this part, the court apparently stated this:
Lip service insufficient. It isn’t enough to say “we don’t think this is fair use.” There must be some evidence in the takedown notice issuance procedure that the four factor fair use test was actually considered in the analysis of whether the use is infringing.
The first thing to consider here is that this decision is made by the 9th Circuit court, which means that the judgment is only valid for a select few states in the west of the U.S.A. Furthermore, it runs contrary to decisions made by other circuit courts, which means that we could be seeing this issue being brought up to the Supreme Court fairly soon for a final verdict.
The second thing to note here is that even though the court has stricken down the notion of ‘lip service’ as sufficient for a takedown notice, it then expresses faith that a computer algorithm can be developed that considers ‘the four factor test’ in determining how to issue them.
It’s tough to tell whether this will have an effect on the copyright situation for YouTubers. If this decision is to be seen as the benchmark on which YouTube reconsiders its requirements towards copyright owners/content I.D. match systems, then some progress has been made. Specifically, this places channels based on critique and online debate in a much better position than they were before. This goes especially for the video response debate, where YouTubers inter-splice clips of other YouTubers or Television Shows/Movies along with their own for the purpose of debate or critique.
Hopefully, YouTube would enforce a stricter standard on Content I.D. companies who specialize in audio content I.D. matching and takedown notices. This is something that’s been woefully lacking with youtube, with horror stories popping up of people being flagged for Public Domain and Creative Commons material–material that is supposed to be immune from these actions.
Since this judgment was against Universal, the bigger companies, such as Warner Bros. and Sony may need to take a step back. Hopefully, YouTube gets pressured in the near future to obliterate the random companies that have popped up to try to claim anything and everything they can match a word to.