When Stephanie Lenz took a video of her cute baby dancing to the song Let’s Go Crazy by Prince, she could not have anticipated that the video would change the law of online copyright infringement. In a recent decision of the U.S. Court of Appeals for the 9th Circuit in California, the court issued what some legal expert have described as a ground-breaking decision in U.S. copyright law.
In 2007, Ms. Lenz posted the video of her baby dancing to Let’s Go Crazy on YouTube. Shortly after posting it, she received a notice from YouTube that it was taking down the video because of a takedown notice it received from Universal Music, the owners of the copyright in the Prince song. Pursuant to the Digital Millennium Copyright Act (DMCA), which is U.S. legislation that regulates online copyright infringement, a copyright holder may serve a takedown notice on an Internet Service Provider (ISP), if he or she have a good faith belief that the copyrighted work (such as a photo, video, or music) was being infringed. The ISP can then avoid liability for copyright infringement, if it “expeditiously” removes the copyrighted material.
Video sharing websites, such as YouTube, regularly receive hundreds (if not thousands) of DMCA takedown requests and often “expeditiously” comply with those requests to avoid potential liability. YouTube did exactly that when it received Universal’s takedown notice – it removed Ms. Lenz’s video of her dancing baby. Ms. Lenz did not accept this removal and sued Universal, claiming, amongst other things, that Universal “misrepresented” that the video had infringed on its copyright. To that end, Ms. Lenz relied on the “fair use” doctrine, which, in simple terms, allows copyrighted material to be used “fairly” for non-commercial purposes, such as for educational purposes, news reporting, criticism etc.
In its decision, the 9th Circuit found in favour of Ms. Lenz’s position. Specifically, the Court held that “a copyright holder must consider the existence of fair use before sending a takedown notification” under the DMCA. In its ruling the Court sent a very clear message to copyright holders, which often include the entertainment and music industries:
To be clear, if a copyright holder ignores or neglects our unequivocal holding that it must consider fair use before sending a takedown notification, it is liable for damages under [the DMCA]. If, however, a copyright holder forms a subjective good faith belief the allegedly infringing material does not constitute fair use, we are in no position to dispute the copyright holder’s belief even if we would have reached the opposite conclusion. A copyright holder who pays lip service to the consideration of fair use by claiming it formed a good faith belief when there is evidence to the contrary is still subject to [DMCA] liability”.
Michael Keyes, an intellectual property partner at the international law firm Dorsey & Whitney, made the following comment about the Lenz decision:
What this decision means from a practical point of view is that anytime content owners see the unauthorized use of their content online (for example music, videos, etc) they will want to carefully consider their options before demanding that the content be removed. If the party that posted the content has a reasonable argument that it’s use of the content was “fair” (I.e. That the poster was commenting on the work or engaged in some sort of educational endeavor) the copyright holder faces the specter of a claim for damages if a take down notice is sent”.
In Canada, the recent amendments by the Copyright Modernization Act impose a different notice and liability regime than the DMCA, which is referred to as a “Notice and Notice regime”. The Notice and Notice regime does not require ISPs to take down materials upon receipt of a notice. Rather, it requires that the ISPs forward the takedown notice to the Internet user and then inform the copyright owner once this has been done. It is therefore questionable whether the Lenz decision would change how Canadian ISPs responds to such requests.
Nonetheless, the Lenz decision is important to Canadians because, given the ubiquitous character of the Internet, Canadian copyright holders often send takedown requests to US ISPs, under the DMCA. Canadian copyright holders would arguably be subject to the requirements and potential liability that the Lenz decision imposes. Moreover, Canadian copyright infringement laws include an exception for fair use. It remains to be seen if and how the Canadian courts consider the Lenz decision in cases involving takedown requests sent to Canadian Internet users.
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