Ninth Circuit Issues Amended Opinion in "Dancing Baby" DMCA Notice-and-Takedown Case

Earlier this month the Ninth Circuit issued an amended opinion in the longstanding "Dancing Baby" notice-and-takedown case. The court added further support for its initial September 2015 holding that a copyright holder must form a subjective good faith belief that a use is unauthorized before issuing a takedown notice under the Digital Millennium Copyright Act ("DMCA"), and removed comments and dicta regarding the level of fair use consideration that might suffice to comply with this requirement.

Over nine years ago, plaintiff Stephanie Lenz uploaded to YouTube a 29-second home video of her two young children dancing to the song Let's Go Crazy by Prince. Universal Music, the publishing administrator, found the video and issued a DMCA take-down notice to YouTube to have it removed as an unauthorized and infringing use of Let's Go Crazy. The DMCA notice included a statement that Universal had a "good faith belief" that the video was unauthorized. Lenz filed suit against Universal under 17 U.S.C. § 512(f) alleging that Universal made a material misrepresentation in the takedown notice because Universal failed to consider that her use was authorized fair use.

In its initial ruling, the Ninth Circuit held that copyright owners must consider whether a use is a lawful fair use before issuing a takedown notice. The court determined that, unlike traditional affirmative defenses to copyright infringement, "[f]air use is not just excused by the law, it is wholly authorized by the law." Lenz v. Universal Music Corp., 801 F.3d 1126 (9th Cir. 2015) opinion amended and superseded on denial of reh'g, No. 13-16106, 2016 WL 1056082 (9th Cir. Mar. 17, 2016). While the court left this holding intact in its recent amended opinion, it removed nearly two pages of its original opinion, including its statement that "a copyright holder's consideration of fair use need not be searching or intensive," and dicta that "the 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." The amended opinion provides little guidance on how intensive a copyright holder's review of potentially infringing use must be to comply with the law. However, the court's elimination of certain passages suggests that, in some cases, a copyright holder may be required to conduct an "intensive" fair use investigation. Going forward, it will be interesting to see whether courts find the use of algorithms a sufficient substitute for an actual (non-automated) fair use analysis as new technology enables increasingly sophisticated computer programs to identify infringing content.

The case is now on remand to the district court for trial on the issue of whether Universal's inquiry was sufficient to form a subjective good faith belief that Lenz's video was not fair use, but rather an infringement of Prince's copyright.