By Brad S. Pulfer
When a parent captures his or her child doing something funny or remarkable on video, copyright law is probably not the first thing that crosses their mind. One mother found out about the frequent and unpredictable nature of copyright law when her family YouTube video was taken down at the request of music giant Universal Music Group. Stephanie Lenz uploaded the 29 second video which features two of her children rambunctiously roaming the family’s living room. It settles on a baby bobbing up and down to the tune of a song in the background. That song, the late Prince hit, “Let’s Go Crazy,” is barely audible and clearly not the subject matter Mrs. Lenz sought to capture in her video. Nonetheless, Universal Music found the presence of the song in the video a violation of their copyrights, and served YouTube with a “takedown” notice.
Universal Music was able to request YouTube to remove the video through the Digital Millennium Copyright Act or DMCA. The DMCA was enacted to empower copyright owners to more easily enforce their rights in an increasingly digital and connected environment. One of the most utilized aspects of the DMCA is the service of a “takedown” notice. A takedown notice is sent to service providers such as YouTube. The service provider should “expeditiously” work to remove the offending content in order to avoid any liability for infringement. Some content creators believe that the DMCA takedown procedures grant too much power to the copyright holder. They believe the DMCA is abused by corporate copyright holders to “bully” those who create and upload content to the internet.
Feeling that she was the subject of this “bullying” by Universal Music, Lenz sued Universal Music under a seldom used provision of the DMCA which prohibits copyright holders from misrepresenting their belief that the material subject to a takedown request is infringing their rights. Before sending a DMCA takedown request, the copyright holder must have a “good faith” belief that the use of the material is not authorized by the copyright owner or the law. This low standard has led to a “shoot first, think later” mentality for rights holders’ service of takedown requests. In a case before the Ninth Circuit, the court sought to curtail such overuse by ruling that copyright holders must consider fair use of the copyrighted material before they send a takedown request.
While this decision seemingly imposed a greater duty on rights holders, and was initially viewed as a win for content producers. The court’s broadened requirement that copyright holders consider fair use before issuing a takedown notice remains capable of abuse as long as the consideration is subjective. Concerned that the Ninth Circuit decision does not do enough to prevent abuse of the DMCA takedown procedures, Lenz has sought review by the Supreme Court. In her petition to the High Court, Lenz urges the Justices to consider an objectively reasonable standard as opposed to the subjective standard as set forth by the Ninth Circuit. Such a change would require copyright holders to perform a much more thorough analysis of potential fair use before serving a takedown notice.
Whether you are a copyright holder seeking to enforce your rights online or a content creator anxious about abuse of the takedown procedures, the Lenz v. Universal Music Corp. case is one to keep a close eye on as the Supreme Court considers its next round of cases.
Brad is an attorney with Fay Sharpe LLP. If you have questions about the subject matter of this article or IP law in general, you may reach Brad at firstname.lastname@example.org or 216.363.9185.