Automatic take downs on YouTube may quickly become a thing of the past as the 9th U.S. Circuit Court of Appeals in San Francisco has made a ruling that will require copyright holders to consider fair use prior to issuing a take down notice for potentially offending content.
This is a huge ruling not just for the online video community, but fair use advocates all over. According to the ruling:
Copyright holders cannot shirk their duty to consider—in good faith and prior to sending a takedown notification— whether allegedly infringing material constitutes fair use, a use which the DMCA plainly contemplates as authorized by the law.
As part of the ruling, somebody who has their video taken down unlawfully may be able to sue for damages. Offended parties may find that difficult to prove in court, but it should deter some copyright holders from being too aggressive with their claims, especially on YouTube.
Copyright on YouTube: Not Always Clear
The creator community on YouTube has long had a love hate relationship with copyright strikes, mostly because they love to hate them. Certainly original copyright owners need protection, but there is a seedy practice among some copyright holders where they issue a copyright claim when content is being utilized under fair use, simply to skim earnings off the top of a video. In many cases, these strikes/claims are overturned, but not before creators have lost out on precious revenue.
The simplest way to avoid this issue is always to create original content, but the recent ruling from U.S. courts may make it even easier.
The Video Behind the New Ruling
If you haven’t been following along, the video in question for this case was posted to YouTube in 2007 and features a baby moving along to a clip of “Let’s Go Crazy” from Prince’s album Purple Rain. The owner of the video, Stephanie Lenz, did get the video restored to her channel but she did not get the damages she was seeking either.
The court found that Stephanie did not have the evidence to prove that Universal Music Corp “knowingly misrepresented” their takedown notice. Stephanie Lenz is still able to seek some nominal damages as the court ruled her rights were violated, but it’s not as much as she could have been awarded had she been able to prove her free speech rights were impaired.
I’m curious to see if YouTube and other video platforms make any changes to their takedown policy as a result of this ruling. They should. Unfair takedown notices violate the rights of a creator just as much as stealing original content does. YouTube has previously erred on the side of caution, wanting to avoid a lawsuit themselves, but now some burden of responsibility has been shifted back to the copyright owners.
Just blocking and flagging content any time it is a violation may not be acceptable after this ruling and it could require some sort of review to take place for all copyright holders prior to a takedown being issued. This would be a great thing for advocates of freedom of expression and speech. In the end it all comes back to making a fair system for all parties involved. This ruling protects copyright holders, while also enforcing the spirit of free speech that the DMCA’s fair use policy was created to protect.