Takedown Senders Must Consider Fair Use, Ninth Circuit Rules

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September 15, 2015

A federal appeals court sided with EFF yesterday on several of the major questions at issue in the long-running Lenz v. Universal copyright caseLenz—sometimes referred to as the “Dancing Baby” case because it centers on a 29-second home video of a toddler dancing with a song by the musician Prince in the background—has long been recognized as a test of the rights enjoyed by users, and the obligations facing people who want to take down online speech.

The big takeaway of yesterday's opinion is, yes, that copyright holders must consider fair use before sending a takedown notice. But just as important is the basis of that conclusion: again today we have a federal court making it clear that fair use is not just a carve-out of the copyright system but a right on the same level of those described in the rest of the statute.

For example, the court states explicitly that “Fair use is not just excused by the law, it is wholly authorized by the law.” However well attested that principle is in the statute and in case law, it is still sometimes considered controversial. Hopefully this decision puts that debate to rest: whether the copyright holder grants permission or not, a fair use is an authorized use.

The court goes on to specify an important consequence of that fact: since fair use is authorized by the law, people enjoying their right to fair use are not infringing copyright. That's important because Universal had argued that fair use has to be considered an “affirmative defense” of otherwise unlawful conduct. The panel of judges dismantled that idea:

Universal’s interpretation is incorrect as it conflates two different concepts: an affirmative defense that is labeled as such due to the procedural posture of the case, and an affirmative defense that excuses impermissible conduct. Supreme Court precedent squarely supports the conclusion that fair use does not fall into the latter camp: “[A]nyone who . . . makes a fair use of the work is not an infringer of the copyright with respect to such use.” Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 433 (1984).

Given that 17 U.S.C. § 107 expressly authorizes fair use, labeling it as an affirmative defense that excuses conduct is a misnomer[.]

One reason this affirmation of fair use is so crucial is that it comes at a time when fair users should be enjoying new opportunities from unprecedented media tools and distribution options, but instead face similarly groundbreaking challenges and pushback from copyright holders. An interview with the video remix artist Elisa Kriesinger published just yesterday brings some of those points into focus: “Every few weeks, you are constantly having to defend your work … You thought you were clear two weeks ago, and now you’ve got to defend it again because someone else is saying that they own a portion of your work.”

Read the full post at the EFF website