How a Dancing Baby Video Just Made It Harder To Remove YouTube Content

Record la­bels and oth­er copy­right hold­ers may find it more dif­fi­cult to re­move con­tent from sites such as You­Tube, thanks to a fed­er­al ap­peals court and a dan­cing baby.

Copy­right hold­ers who want in­fringing con­tent taken down from the In­ter­net—a re­quest to re­move a bootleg video from You­Tube, for ex­ample—must con­sider wheth­er the con­tent is pro­tec­ted un­der fair-use rules, the 9th U.S. Cir­cuit Court of Ap­peals ruled Monday.

The de­cision is likely to make it more dif­fi­cult for large copy­right hold­ers such as re­cord la­bels to is­sue a large volume of take­down re­quests without con­sid­er­ing as­pects of the con­tent they want re­moved that render it pro­tec­ted un­der copy­right law.

The case de­cided Monday was brought by a wo­man who in 2007 re­cor­ded and pos­ted a video of her young son dan­cing to “Let’s Go Crazy,” a song by Prince, only to find the 29-second video re­moved from You­Tube in re­sponse to a copy­right claim from Uni­ver­sal Mu­sic Group. The wo­man, Stephanie Lenz, ob­jec­ted to the re­mov­al of her video, and had it re­stored.

Lenz then sued the mu­sic com­pany for an un­law­ful take­down re­quest, with the help of the the Elec­tron­ic Fron­ti­er Found­a­tion, a civil-liber­ties ad­vocacy or­gan­iz­a­tion.

A pan­el of three fed­er­al judges un­an­im­ously up­held a dis­trict court’s rul­ing that copy­right hold­ers have to con­sider fair use be­fore is­su­ing a take­down re­quest—and that Uni­ver­sal could be held li­able for dam­ages un­der copy­right law if a jury found that the com­pany sent the re­quest without con­sid­er­ing fair use.

“Today’s rul­ing sends a strong mes­sage that copy­right law does not au­thor­ize thought­less cen­sor­ship of law­ful speech,” said EFF Leg­al Dir­ect­or Corynne Mc­Sh­erry in a state­ment. “We’re pleased that the court re­cog­nized that ig­nor­ing fair-use rights makes con­tent hold­ers li­able for dam­ages.”

But the judges de­cided that since Lenz was un­able to show that Uni­ver­sal knew but will­fully ig­nored the fact that her video con­sti­tuted fair use—or that it went out of its way to avoid dis­cov­er­ing that fact—they them­selves would not is­sue a judge­ment hold­ing Uni­ver­sal li­able.

This means the de­cision was not an un­qual­i­fied win for ad­voc­ates of less re­strict­ive copy­right use. “While we had hoped that the case could have provided a much clear­er path for at­tack­ing bogus take­down no­tices, the de­cision still means that fair use can­not be ig­nored, and that the take­down pro­cess is not meant to be a one-sided af­fair,” said Sher­win Siy, vice pres­id­ent of leg­al af­fairs at Pub­lic Know­ledge, an open-In­ter­net ad­vocacy group.

Uni­ver­sal re­lied on pro­vi­sions of the Di­git­al Mil­len­ni­um Copy­right Act to ask You­Tube to re­move the video, tak­ing ad­vant­age of a law that al­lows plat­forms like You­Tube to avoid li­ab­il­ity for copy­right in­fringe­ment as long as they re­spond to re­quests for take­downs. But the copy­right law’s ex­cep­tions for fair use—which in­clude com­ment­ary, cri­ti­cism, par­ody, and edu­ca­tion­al uses, among oth­ers—al­lowed Lenz to re­in­state the clip she pos­ted.

You­Tube, like oth­er on­line plat­forms, uses an auto­mated sys­tem to deal with the large volume of copy­right-re­lated re­quests it re­ceives, match­ing copy­righted video and au­dio fin­ger­prints with user-up­loaded con­tent to find videos that clearly in­fringe copy­right.

The pan­el of judges wrote that the use of al­gorithms “ap­pears to be a val­id and good faith middle ground for pro­cessing a pleth­ora of con­tent while still meet­ing the DMCA’s re­quire­ments to some­how con­sider fair use.”

But us­ing auto­mated sys­tems does not free copy­right hold­ers from the bur­den of con­sid­er­ing in good faith fair use be­fore ask­ing a plat­form to take down a video, the judges said.

(Image via Nagel Photography/ Shutterstock.com)