Copyright owners and online media services have been at odds about the responsibility (or lack of responsibility) the services like YouTube, Facebook, Instagram and others have when people post/upload without permission copyrighted content owned by the copyright owners. The compromise (developed earlier for earlier online publishers, like AOL, MySpace, and the like and made part of the Copyright Act with the 1998 amendments known as the Digital Millennium Copyright Act (the “DMCA”)) is a procedure under which copyright owners can send takedown notices to the services identifying the copyrighted work and demanding that the offending content be taken off the site, and then the posting party is given an opportunity to respond. In what has become known as the “dancing baby” case, a mom in Pennsylvania who posted a video of her toddler dancing to the music of Prince’s “Let’s Go Crazy” in 2007 was sued by Universal Music for copyright infringement. The Electronic Frontier Foundation represented the mom (Stephanie Lenz) who obviously was not in the position to do battle on her own against Universal and the Recording Industry of America and the Motion Picture Association of America, which supported Universal. Ms. Lenz’ position was that the use of the song was “fair use” and thus not subject to liability. On Monday this week, the Ninth Circuit Court of Appeals held that copyright owners under the DMCA must consider fair use before asking services like YouTube to remove videos posted to the site. The three-judge panel made it clear that paying “lip service” to fair use could expose a copyright owner to liability. However, the Court also stated that in making the fair use analysis, the copyright holder in moving forward with a takedown notice “need only form a subjective good faith belief that the use is not authorized.” According to the Court in making sure it was getting its message across is that “To be clear, if a copyright holder ignores or neglects our unequivocal holding that it must consider fair use before sending a takedown notification, it is liable for damages under § 512(f). If, however, a copyright holder forms a subjective good faith belief the allegedly infringing material does not constitute fair use, we are in no position to dispute the copyright holder’s belief even if we would have reached the opposite conclusion. A copyright holder who pays lip service to the consideration of fair use by claiming it formed a good faith belief when there is evidence to the contrary is still subject to § 512(f) liability.” The Court added that “a copyright holder’s consideration of fair use need not be searching or intensive…formation of a subjective good faith belief does not require investigation of the allegedly infringing content,” but added that a copyright owner who acts with “willful blindness” with respect to fair use, that is it “subjectively believes” there is a “high probability” that the posted content constituted fair use and “took deliberate actions to avoid learning of this fair use,” likely will face liability if it sends a takedown notice.

Given the state of the fair use doctrine, which is somewhat in disarray, this should get really interesting.

A copy of the opinion is at http://cdn.ca9.uscourts.gov/datastore/opinions/2015/09/14/13-16106.pdf.

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