Let’s Go Crazy Trying to Take Down that Baby!

Eight years ago, Stephanie Lenz uploaded to Youtube a 30 second video of her young child dancing to Prince’s “Let’s Go Crazy.” The video went viral and soon Universal, the copyright holder for “Let’s Go Crazy,” sent a take down notice to Youtube alleging the video violated their copyright. Youtube complied with the notice and removed the video but later reposted it when Lenz filed a counter-notification claiming fair use. After getting the attention and support of the Electronic Frontier Foundation (EFF), an organization that supports civil liberties in the digital world, Lenz sued Universal for abusing the Digital Millennium Copyright Act (DMCA) by filing a frivolous take down notice.

Take down notices were originally created as a way for copyright owners to fight infringement and for websites and online service providers to avoid liability for hosting infringing material by complying with the notice and removing the content. Unfortunately what started as a system in which copyright owners could make good faith notifications about infringing material snowballed into a game of “send take down notice first, ask questions later.” Corporations with large copyright catalogues created bots to scour the internet for potentially infringing material and would fire out hundreds of notices without even a cursory determination of whether that material was in fact infringing.

Lenz claimed that Universal was one of these bad actors, issuing take down notices in bad faith by trying to remove anything that involved Prince’s music without consideration of whether the content was actually infringing. (Not surprisingly this occurred around the same time Prince made strong comments about controlling his music online). Universal tried to get the case dismissed by arguing that making a subjective case by case decision on whether something constituted fair use was virtually impossible when considering the vast amount of potentially infringing content on the internet.

For the past seven years, the case has gone back and forth in the District Court for the Northern District of California, with both parties being denied summary judgment in 2013. The parties appealed, and just last week the 9th Circuit affirmed the District Court’s decision. Many media outlets have declared victory for Lenz and the EFF, and the decision of the 9th Circuit certainly starts out in their favor.

“We hold that the statute requires copyright holders to consider fair use before sending a takedown notification, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law.”

This opening implies that any automated system of identifying infringing content would be in violation of the statute, but the decision soon backtracks and claims that the kind of review Lenz is requesting is untenable and that a good faith review does not require a detailed investigation into the allegedly infringing content.

If you’re scratching your head right now, you aren’t alone. The decision basically says that a good faith review of fair use is required before a take down notice can be issued, but that this review doesn’t need to be thorough and the court has no way of challenging whether the review was in good faith. The court goes on to say that automated computer algorithms appear to be a good way to review the “plethora of content” online while at the same time complying with the DMCA.

So this seemingly important development in the Lenz v. Universal case doesn’t really clear up much at all. Because the decision was only an affirmation of the District Court’s denial of summary judgment, the trial will continue after almost eight years. Gotta love that fast moving judicial system!

In the mean time, supporters of Lenz, fair use, and free speech on the internet will cite portions of the decision when challenging take down notices, while those issuing the take downs will point to the same decision, just a different paragraph. You don’t have to be a lawyer to find this “development” frustrating and not entirely clear. All I know is you can still check out that baby getting down to Prince on Youtube. Here’s a link to the video as well as a link to the 9th Circuits decision.

https://www.eff.org/files/2015/09/14/lenz_ca_9_decision.pdf

https://www.youtube.com/watch?v=N1KfJHFWlhQ