Screenshot from 9th Circuit videoIn September, the US Court of Appeals for the 9th Circuit issued its ruling in the “Dancing Baby” copyright takedown case, initiated by the Electronic Frontier Foundation more than eight years ago.
It was a victory for the EFF, but a very mixed one.
Today, the court issued an amended opinion that makes the EFF’s win stronger.
The initial ruling made it clear that copyright owners need to at least consider fair use before they issue a DMCA takedown notice.
At the same time, the bar wasn’t too high for what a rightsholder has to do to form a “good faith” belief that there’s no fair use.
The fair use consideration didn’t have to be “searching or intensive,” US Circuit Judge Richard Tallman wrote in his opinion.
Tallman also wrote a section of the opinion that appeared to endorse automated computer filters as a valid fair use consideration. “The implementation of computer algorithms 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,” he wrote.
In the amended opinion, the language about algorithms being a “valid and good” type of fair use consideration is gone.
The suggestion that the fair use consideration doesn’t need to be thorough has also been edited out.
Getting that language out is another win for Stephanie Lenz, who sued back in 2007 after Universal Music sent her a copyright takedown over a video of her then-toddler Holden dancing to about 30 seconds of the Prince song “Let’s Go Crazy.”
“For years, EFF and others have acknowledged that automated programs and filters may have a role to play the notice and takedown process,” wrote EFF lawyer Corynne McSherry in a blog post about the amended opinion. “But they cannot substitute for a fair use analysis in many cases and we don’t believe that what the court intended to suggest. We’re glad rightsholders can no longer misinterpret the ruling on this score.”
US Circuit Judge Milan Smith dissented from the initial ruling. While his two colleagues ruled that the EFF has to prove at trial that Universal Music “knowingly misrepresented” its “good faith belief the video was not authorized by law,” Milan would have issued a summary judgment ruling giving an immediate win to the EFF.
In the amended opinion, Smith’s dissent is even sharper. He scolds the majority for putting in the hands of a jury what he considers a glaring case of fair use, writing:
By Universal’s own admission, its agents were not instructed to consider whether the use was fair.
Instead, Universal directed its agents to spare videos that had “a second or less of a Prince song” or where the song was “distorted beyond reasonable recognition.” And yet, from this, the majority concludes that “whether Universal’s actions were sufficient to form a subjective good faith belief about the video’s fair use or lack thereof” presents a triable issue of fact… Had Universal properly considered the statutory elements of fair use, there is no doubt that it would have concluded that Lenz’s use of Let’s Go Crazy was fair.
The case now goes back to the district court in San Jose to schedule a jury trial on the fair use issue.