By Jose Sariego
One day in 2007, Stephanie Lenz thought it would be fun to record her babies dancing around the kitchen to Prince's popular song "Let's Go Crazy" in the background. So she made a 29-second video of them. She thought others might think it was cute, so she posted the video on YouTube for free.
She was right — her dancing babies were a hit, garnering more than 1.8 million views to date.
Among those watching was an assistant in the legal department of Universal Music, the music publisher that owns the rights to the Prince song. Unlike the thousands of other viewers, however, the assistant did not think the video was cute. In fact, he thought it was illegal because it used a goodly portion of "Let's Go Crazy" without permission from Universal.
So the assistant did what Universal and countless other copyright owners have done since 1990 when the Digital Millenium Copyright Act was passed. He sent YouTube a take-down notice to remove the video from the site. Following protocol, YouTube promptly took down the video to the chagrin of thousands of viewers — and one really ticked off mom.
You see, a funny thing happened. Unlike millions of other casual YouTube posters who don't complain when YouTube takes down a video that they thought was cute or otherwise innocuous, Lenz fought back. She and her babies challenged Universal Music by unsheathing the right that many of these creators have in their arsenal but rarely use — the right to fair use of a copyrighted work.
Written into the law, fair use allows a third party to make use of a copyrighted work under certain circumstances. There's a complicated four-part test, but it essentially boils down to whether the second work transforms the first work sufficiently to basically constitute a new work.
The U.S. Constitution empowers Congress to "promote the progress of science and the useful arts" by granting copyright owners limited exclusive rights. And Congress responded by writing fair use into the law to balance the interests of content creators and those that would come after them. As the U.S. Supreme Court said in Campbell v. Acuff-Rose Music in 1994, "Some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright's very purpose."
Heretofore, however, fair use was rarely if ever considered by copyright owners when sending take-down notices to YouTube, even though the DMCA required them to form a subjective, good faith belief that the use was not authorized by law. After all, determining fair use is a messy affair, what with four fact-intensive factors to consider and millions of videos uploaded daily.
Hell hath no fury like a mother scorned, particularly when her cute offspring are being accused of violating the law. Lenz took on Universal and demanded that the music giant consider her video fair use or at least explain why it was not. And the U.S. Court of Appeals for the Ninth Circuit in California agreed with her, ruling last year that content owners must consider fair use when sending take-down notices to YouTube and other similar sites.
The ruling initially sent shivers down the backs of legal departments all over Hollywood and other capitals of media giants. No longer would robots be able to simply scan potentially offending content to determine if a certain percentage of the copyrighted material was included (in which case out went the take-down notice). Now, content owners would have to consider the minefield that is fair use before sending out notices in order to meet their "subjective good faith" requirement.
Mindful of the havoc it was causing, the Ninth Circuit initially did not set the bar too high. The court said, "In order to comply with the strictures of [the DMCA], a copyright holder's consideration of fair use need not be searching or intensive." In fact, the court said formation of a subjective good faith belief does not even require investigation of the allegedly infringing content! Moreover, content owners could continue to use a robot (i.e. an algorithm) to make their determination.
This low threshold hollowed out Lenz's victory, of course. After all, this is precisely what content owners are already doing anyway, so what did the court really add?
Sensing this, the court has now issued a revised opinion and deleted the sections of its opinion setting the bar so low. But it hasn't replaced it with a new bar — high or low. We are left to wonder where is the appropriate balance between the limited exclusive rights granted to copyright owners and the progress in the sciences and useful arts that fair use promotes. Who knows? Outside of the DMCA, the courts are all over the place regarding the application of fair use, so why should the DMCA context be any different? We're back to that uncertain landscape where one judge's fair use is another judge's copyright infringement. Oh, well, more grist for the lawyers.
The good news — you can see Stephanie's dancing babies on YouTube. Maybe she'll be inspired by her victory to create another video, although she better hurry — her babies will be all grown up by the time this gets clarified.
This article is reprinted with permission from Daily Business Review.