In September 2015, the Ninth Circuit issued an opinion in what has been dubbed the “Dancing Baby copyright takedown case.”  The decision explained that a copyright holder who uses computer algorithms to flag infringing content on the web has satisfied the subjective good faith requirement necessary to issue a takedown notice under the Digital Millennium Copyright Act (DMCA).  The Ninth Circuit issued an amended opinion on March 18, 2016 that made no reference to computer algorithms satisfying the good faith requirement.

The “Dancing Baby” copyright takedown case involved a mother, Lenz, who posted a 29-second YouTube video of her toddler dancing to Prince’s “Let’s Go Crazy.”  Universal Music Publishing Group (UMPG) claimed that the recording infringed one of its copyrights.  UMPG requested that YouTube remove the video from its site by issuing to YouTube a “takedown notice” pursuant to the DMCA, which says that an Internet Service Provider or website owner must remove digital content from its website at the request of the owner of the digital content.  After YouTube removed the video, Lenz filed suit against UMPG claiming that her video was permissible as a fair use of the song and that the DMCA required UMPG to consider whether the video qualified as fair use before issuing the takedown notice.  UMPG stated that fair use was an affirmative defense and that it therefore did not need to consider it before issuing a takedown notice.

In its original opinion, the Ninth Circuit held that the DMCA did require UMPG to consider whether the video was a fair use before issuing a takedown notice to YouTube.  The basis for this holding was the DMCA’s language that a takedown notice be based upon a “good faith belief that the . . . activity is not authorized by the copyright owner, its agent, or the law.”  The court then stated that fair use was authorized by the law.

The issue then became whether UMPG did in fact consider whether the use of the content was fair use.  The court explained that the DMCA requires only that a copyright holder form a subjective, rather than objective, good-faith belief that the use of content is unauthorized.  The court also explained that forming this belief did not require “searching or intensive” consideration because of the “voluminous infringing content that copyright holders face in a digital age.”  The court then noted that human review is not necessary, but that computer algorithms could satisfy the subjective good faith requirement when “implementation of computer 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.”

In its amended opinion, the Ninth Circuit still required UMPG to consider whether the digital content was a fair use before issuing a takedown notice.  However, it removed the language explaining that a fair use inquiry was not “searching or intensive.”  It also removed language explaining that computer algorithms could be used to satisfy the subjective good faith requirement.

The change in opinion may have little effect on the case’s decision with respect to the involved parties: a UMPG employee searched YouTube and flagged infringing videos in this case, rather than a computer algorithm.  But it may afford more protection to the Internet’s future users who may not have their active infants removed simply because a program identified their videos as infringing.


–Jason Palmer

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