Back in February 2007, a mother of a young boy posted a short, grainy video of her baby “dancing” around the kitchen while a Prince song plays, barely audibly, in the background. In the eight years since, the video has received nearly 1.3 million views on YouTube — not because it’s a particularly interesting clip, but due to its role in a copyright lawsuit that won’t go away.
While most copyright claims on YouTube are now performed by automated systems that compare sounds and images with databases of copyrighted content, at the time the dancing baby video was uploaded, many record and movie companies had actual humans monitoring YouTube.
Thus, in the summer of 2007 a real person at Universal Music saw the above video and was somehow able to discern above the distorted audio and screaming children that the song blaring in the background is “Let’s Go Crazy” from the 1984 Prince and The Revolution album Purple Rain.
Additionally, that presumably living and breathing sentient being also came to the conclusion that this 29-second non-commercial home video was a valid case of copyright infringement and had it included on a list of Digital Millennium Copyright Act takedown notices sent to YouTube.
The video was initially removed by YouTube and remained down for about six weeks, but after retaining an attorney, the mom was able to convince the Google-owned site that her video constituted a “fair use” of the song and it was reinstated.
For many YouTubers, that would have been the end, but the mom decided in July 2007 to take a more lasting stand against frivolous copyright claims. She sued, with assistance from the Electronic Frontier Foundation, the publisher in federal court [PDF], claiming Universal had violated the DMCA by failing to consider the video might constitute “fair use” before demanding a takedown.
Though it rarely gets enforced, the DMCA does stipulate that “Any person who knowingly materially misrepresents” that something infringes on copyright “shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer… who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.”
In the mom’s eyes, Universal knowingly misrepresented an infringement claim to YouTube when it did not take into account the possibility that the inclusion of background music in a very short amateur video might constitute a fair use.
Universal countered that the DMCA doesn’t mention fair use and that fair use is not an authorized use of a song, but an excusable use. To the publisher, this means that the shoot first, ask questions later approach of the takedown demand was appropriate — Universal requested a takedown because it was not an authorized use, and it was reinstated when it was later determined to be fair use.
However, in a 2008 order [PDF] denying Universal’s motion to dismiss, the District Court judge notes that the Copyright Act’s section on Fair Use explicitly states that fair use is “not an infringement of copyright.”
Universal claimed that requiring copyright holders to consider fair use before requesting a DMCA takedown would slow down the process of combating actual infringement, but the judge wasn’t won over by this argument, pointing out that the DMCA “already requires copyright owners to make an initial review
of the potentially infringing material prior to sending a takedown notice… A consideration of the applicability of the fair use doctrine simply is part of that initial review.”
But this wasn’t the end, and the case has yet to reach trial. Instead, there have been multiple requests for summary judgement from the court. In Jan. 2013, the court denied such requests from both sides.
The mom had presented evidence making her case that Universal did not instruct the employee in charge of reviewing YouTube videos to consider fair use, and he admitted in a deposition that the fair use doctrine did not enter into his decision. However, the court said no to granting a summary judgement in her favor because she had yet to prove that Universal was willfully blind to fair use in this case.
On the flip side of the coin, the court held that Universal admitted to considering some factors related to fair use in the takedown process, but did no analysis to determine if this was actually a case of fair use. Thus, the court could not come down on the publisher’s side. Additionally, the court disagreed with Universal’s contention that the mother was precluded from claiming any damages as a result of the takedown action.
The case is now pending before the U.S. Court of Appeals for the Ninth Circuit in San Francisco, where tomorrow morning EFF Legal Director Corynne McSherry will argue that the purpose of the DMCA wasn’t just to give copyright holders an easy and quick way to issue takedowns of content without any consequence.
The DMCA has rules, and copyright holders should be held accountable, contend supporters of this lawsuit.
“Unfounded and abusive takedown notices inflict real harms on [online service providers], Internet users, and copyright holders,” reads an amicus brief [PDF] filed in 2013 by Google, Twitter, Tumblr, and Automattic. “Every time an unfounded takedown notice results in the removal of legitimate, non-infringing content posted by a user, it constitutes unjustified censorship of the user’s right to share speech with others and interferes with the OSP’s business of hosting and disseminating that user’s speech.”
A loss by Universal could have a wide-ranging impact on the automated takedown process. It would mean that publishers could be held accountable, and face damages, for submitting takedown requests of legitimate content. Right now, the onus is on the alleged offender, who must often jump through bureaucratic hoops to make the case that they did not infringe on the copyright — or that they are actually the copyright holder of the very thing they are being accused of stealing.