So we know that spurious copyright takedown notices is a regular feature of gaming videos online. YouTubers, journalists and critics alike have run afoul of both companies using takedown notices to censor or control the use of their content on the basis of copyright infringement and a less than judicious automatic content ID system. Well, the latest ruling in a court case discussing just such a topic is a great win for fair use and has implications for copyright holders going forward.
The case concerned a 29-second video of a baby dancing to a Prince song, Let’s Go Crazy. Uploaded by Stephanie Lenz in 2007, the video featured her children dancing to the song playing on a radio in the background. It’s actually pretty awful. Universal Music Group sent a takedown notice — not because it’s awful, which would had at least a moral-if-not-legal bedrock — but rather claiming it infringed their copyright. Well, Lenz decided that she wasn’t having any of it and contacted the Electronic Freedom Foundation (EFF), who sued Universal on her behalf. Ultimately, judges agreed with Lenz, but the kicker’s in the details.
Firstly, they state that Universal must be able to demonstrate that they’ve made a reasonable analysis of whether the content constitutes fair use before serving the takedown notice. This is massive; systems like YouTube’s content ID system requires little to no intervention from copyright holders before suspending a video, placing the burden of proof on the YouTuber to prove their innocence. While the ruling still supports automated takedown systems, it should consider when the full or “nearly all” of a video or audio track was replicated. It does open up a discussion about how a computer algorithm determines fair use; at least one on the panel, Circuit Judge Milan Smith, scoffed at both the idea that Universal had considered fair use at all, and that a computer algorithm was capable of considering every fair use factor as required by law, and therefore dissented in part on the judgement.
Secondly, the court found the Universal’s argument that a victim of takedown abuse cannot defend their rights if they cannot demonstrate that there’s an “actual monetary loss”. In other words, if a defendant is hit with a court case or legal challenge, it’s up to the accuser to prove they’ve vetted the content for fair use, rather than the defendant having to argue for fair use to avoid charges. It’s a subtle distinction but important.
EFF’s thrilled, of course. Sites like Tech Dirt are less so, explaining that the vague wording of the ruling creates a potential loophole that means copyright owners don’t really have to change anything. I’m cautiously optimistic about it; and while it doesn’t necessarily impact on South African users of generated content in games, it will potentially impact that systems that polices their content on services like YouTube. You can read the judgement in full here.