It’s time for SCOTUS to weigh in on digital fair use

dancing-baby

The following op-ed was co-authored by Charles Duan, director of the Patent Reform Project at Public Knowledge.


It’s been almost 10 years since Stephanie Lenz was informed by Universal Music Group that the video she filmed and uploaded to YouTube of her infant bopping up and down to Prince’s “Let’s Go Crazy” violated the music giant’s copyright. But a request filed recently by U.S. Supreme Court seeking the U.S. solicitor-general‘s opinion on some of the case’s thornier questions could mean the “dancing baby” soon will be before the highest court in the land.

Lenz’s video was one of many UMG asked to be taken down as part of a public purge of people using the Purple One’s music online. While copyright law usually disallows using someone else’s music without permission, there is an important exception that allows anyone to borrow from a copyrighted work without permission: the exception called “fair use.”

Fair use recognizes that a lot of everyday activities—quoting news sources, showing snippets of online search results, parodying songs, recording TV shows for later viewing—require some amount of copying that should not be considered infringement.

The doctrine goes as far back as 18th century England, although it wasn’t codified in U.S. statute until the Copyright Act of 1976. The 1841 case of Folsom v. Marsh helped outline the determining factors of fair use: the use must be transformative in nature, the amount of the work taken must be limited and it shouldn’t undermine the original work’s commercial value.

Section 512 of the Digital Millennium Copyright Act allows content owners to petition intermediaries like YouTube to take down content they believe infringes their copyrights. The intermediary provides notice to the user, who then may contest the petition. That’s exactly what Lenz did in 2007, sending two counter-notifications claiming her 29-second video was fair use. YouTube brought the video back online within a month of the takedown request.

While the dancing baby video is pretty clearly in line with what courts have determined to be fair use, another important question is whether Universal should have been allowed to send that takedown notice in the first place. The DMCA prescribes penalties for anyone who “knowingly materially misrepresents…that material or activity is infringing.” Lenz pursued that claim and, in September 2015, the 9th U.S. Circuit Court of Appeals agreed that Universal had an obligation to consider fair use before sending a takedown notice. Alas, the Ninth Circuit found, relying on a 2004 precedent, to escape penalties, Universal just had to show that it had “formed a subjective good faith belief” that the video was not fair use.

The Constitution provides limited protections for copyrighted works. As technology has become more complex, Congress and the courts have found ways to accommodate artists who need protection, while ensuring that core protections like fair use remain strong. If nothing more than a “subjective good faith belief” need be taken into consideration, overzealous content owners can censor or block things they don’t like without consideration for how much is used. Indeed, overly broad copyright enforcement powers can stifle both creativity and free expression.

Intermediaries like Google receive more than 20 million notices of content infringement each day. The content industry has built automated systems to weed out infringing content, in a process the copyright holders describe as a time-consuming “whack-a-mole” problem. But as the takedown industry becomes automated, do these new robot lawyers actually account for things like fair use, as the law requires? The Lenz case is important because, while art should be protected, it should not be at the cost of silencing free speech or deterring others from creating transformative works.

Who would have thought the future of copyright law would remain in the hands of a dancing baby whose only concern was holding onto his toy car? Were it not for Prince’s “purple purge” and one very enthusiastic mother, this seemingly run-of-the-mill notice-and-takedown likely would not have crossed a court’s radar. Now, it’s time for the Supreme Court to weigh in and strike the proper balance.

 

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