Big Content gets legal poke in the eye

US court in texas

US court in Texas

Big Content’s methods of automatically issuing take down notices of material it considers pirated received a poke in the eye from the US courts.

A US appeals court ruled that copyright holders must consider “fair use” before demanding the removal of videos that people post online.

In a closely followed case over a home video of a toddler dancing to the Prince hit “Let’s Go Crazy.” In that case Stephanie Lenz of Gallitzin, Pennsylvania had in February 2007 uploaded to YouTube a blurry 29-second clip of her 13-month-old son Holden happily bobbing up and down to “Let’s Go Crazy,” a 1984 song by Prince and The Revolution that played in the background.

Lenz said she thought her family and friends would enjoy seeing the toddler, who had just learned to walk, dance as well.

But Universal, which enforced Prince’s copyrights, persuaded YouTube to remove Lenz’s video, citing a good faith belief that the video was unauthorised.

Lenz had the video restored and sued Universal over the takedown notice, seeking damages.
The 9th U.S. Circuit Court of Appeals in San Francisco has now made it tougher for content providers such as Universal Music Group to force Internet service providers to remove material.

“Copyright holders cannot shirk their duty to consider – in good faith and prior to sending a takedown notification – whether allegedly infringing material constitutes fair use,” Circuit Judge Richard Tallman wrote for a 3-0 panel.

In January 2013, US District Judge Jeremy Fogel in San Francisco said copyright holders must consider fair use, but denied Lenz’s misrepresentation claim.

Upholding that ruling, Tallman said there can be liability if a copyright holder “knowingly misrepresented” in a takedown notice that it had a good faith belief that a video “did not constitute fair use.”

But he also said courts should defer to a copyright holder who has a “subjective good faith belief” to the contrary.

The 9th Circuit said Lenz failed to overcome this hurdle, and instead may seek nominal damages for the “unquantifiable harm” she suffered.

Corynne McSherry, a lawyer with the Electronic Frontier Foundation representing Lenz, said the decision “sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech.”