The song, it turns out, was Let’s Go Crazy by The Artist Formerly Known As The Artist Formerly Known As Prince (TAFKATAFKAP?), the copyright to which is owned by Universal Music Group. Rather than finding the video cute and quaint, Universal called on its lawyers, who promptly filed an affidavit (PDF) under oath and demanded that YouTube remove the video, asserting that they were authorized to act on behalf of Universal, and that they had a "good faith belief" that Lenz’s posting was "not authorized by the copyright owner, its agent, or the law." Universal demanded that YouTube remove the video pursuant to its own Terms of Use, which mirror the provisions of the Digital Millennium Copyright Act. They also requested that YouTube inform Lenz of the illegality of her conduct.

Effectively, what Universal was telling YouTube was, take down Lenz’ video or prepare to be sued for contributory infringement –- oh, and tell your customer that she can go to jail for what she did. The DMCA rewards companies that play it safe: If YouTube took the video down erroneously, by statute it would have no liability. So what did YouTube do? It took down the video.

The use of these takedown notices is becoming ubiquitous and threatens to undermine the doctrine of fair use. Unfortunately, the law in this regard is at best ambiguous. Ultimately, this case and those like it will hinge on the term in the DMCA that requires the copyright holder to have a good faith belief that the use of the copyrighted work is not authorized by law.

Infringing or not?

There is no doubt that the song Let’s Go Crazy is copyrighted, although reasonable parties can disagree about its musical merit. (OK, I admit, I rarely listen to music made after 1972). Thus, it is clear that someone selling copies of the song online, or even giving them away would likely constitute an infringement and would merit a takedown notice.

By obtaining a copyright to Let’s Go Crazy, Universal obtained a “bundle of rights” under copyright law. These include the rights to make or prevent the making of copies and derivative works and to control the public performance of the work, as well as other rights. However, in granting these rights, Congress, mindful of its constitutional power "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries," provided that certain uses of copyright works were not infringing. These included what is called "fair use" -- generally non-commercial (educational, literary, commentary, parody and even entertainment) uses of a portion of the copyrighted work that don’t deprive the copyright holder of substantial revenue. (A gross oversimplification of the doctrine, but a useful shorthand.)

It is important to note that a fair use of a copyrighted work is not an infringement and is permitted under the copyright law. You don’t need the copyright holders permission to make a fair use of the work and can do so even when the copyright holder tells you no. In short, fair use is "authorized by law."

The DMCA and takedown abuse

To combat the plague of copyright infringement online and to strike a balance between the rights and obligations of the copyright holder, the user of the copyrighted work, and the Internet Service Provider (ISP) or other third party that might be inadvertantly hosting the allegedly infringing work, Congress provided a streamlined mechanism to remove potential infringements while short circuiting the need to file a lawsuit in federal court: The takedown notice.

The takedown notice allows the copyright holder to tell an innocent third party that they are hosting an infringing work through the use of a declaration to that effect under oath. The ISP can then either keep the work up -- in which case they have the potential for liability for either direct or contributory infringement themselves -- or they can take the work down -- in which case they have no liability to either their customer (the person whose work they just erased) or to the copyright holder. For the ISP, it's not choice at all: They typically take down the allegedly infringing work.

The law provides that the recipient of the takedown notice notify the person posting the materials about the notice, and there is a mechanism to get the “offending materials” put back up. To do so, however, the customers has to be willing to give the ISP (and, by extension, the copyright holder) their name, address, contact information, and consent to be sued in Federal Court under oath. Moreover, the customer must state under oath that they have a "good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled."

In the latest case, Lenz notified YouTube of her belief that a mistake had been made upon receiving the notice, and YouTube put the video back up. There's something missing, however? There is no provision for getting material put back simply because your use of the material was a non-infringing "fair use." Thus, the statute potentially provides copyright holders carte blanche to issue takedown notices to anyone making fair use of all or portions of their copyrighted works. For example, if in this article, to illustrate a point, I quoted a line from the aforementioned Prince song, Universal could issue a takedown notice to the ISP stating that the line was copyrighted, and that they didn’t authorize me to quote it -– presumably they could get this entire article blocked.

The "Fair Use" Defense

One of the problems here is the fact that the doctrine of fair use is, under the law, a "non-infringing" use. Effectively this means that, if you are sued for copyright infringement and you can show that your use comes under the fair use doctrine, you have a defense to a claim of infringement.

Universal clams that they can’t tell if Lenz’ use is "fair." Hell, she never even raised that defense -– even to this day. How could they possibly know that the video of Holden Lenz was a fair use? In fact, their lawyers maintain that Holden’s dancing to the song is still an infringing use. Because fair use is a defense under the law, their notice to YouTube to take down the video claiming that the use was "not authorized by law” was reasonable -– and indeed remains reasonable. They state that the validity of the fair use defense is "never self-evident" and that to this day they have no "actual knowledge" that the Lenz video is anything other than an illegal infringement of their copyright. They also add the fact that the video has been downloaded 115,000 times. Under their rationale then, Universal could sue Lenz (and potentially YouTube) for $150,000 per infringement, since Lenz clearly put the video up "willfully" and indeed after she received "notice" that Universal considered (and still considers) the posting to be infringing and "not authorized by law." Thus, Lenz faces a potential lawsuit of $17.25 billion, plus costs and attorney’s fees.

Holden’s dancing is cute, but not worth that kind of scratch.

Copyright holders – particularly large institutional ones – are reluctant to ever concede that any uses of their works are “fair.” Indeed, in a recent debate over fair use on National Public Radio between Washington Post reporter Marc Fisher, who is a friend of mine, and RIAA General Counsel Cary Sherman, another friend, Sherman refused to expressly state that even copying a purchased CD to an MP3 player or computer for personal listening constituted a "fair use" simply noting that the RIAA website says that this "won’t usually raise concerns" and that the RIAA has not yet taken the position that it is infringing. However, Sherman added that the RIAA can’t answer the question "in the abstract" because the law "isn’t as clear as you would like it to be." In theory, like the Holden Lenz video, the RIAA could in good faith sue your pants off for putting your music on your iPod, and you would have to show that this use was fair.

Universal also claims that their takedown notice was reasonable because fair use is a defense, and until raised and proven, is not available, but also because the DMCA requires proof that the takedown notice be made with actual knowledge that it is false before any liability assigns to the person issuing the takedown notice. Thus, citing a 2004 case in the Ninth Circuit Rossi v. MPAA (pdf), Universal claims it can’t be liable for demanding the video be removed even if it acted recklessly, negligently or unreasonably in making the demand, unless there was some actual knowledge that it was misrepresenting the facts. The defense recalls Sergeant Schultz from Hogan's Heroes, who would always say “I know nothing.” Thus, Universal can plausibly claim that the use is infringing because no defense has yet been raised, and therefore that it must be taken down.

Remedies without frontiers

The problem with Universal’s sweeping claim is that the DMCA effectively gives copyright holders online remedies without the same requirements of proof they would have in court. By simply making a claim under oath of infringement, they effectively get an injunction ordering the removal of materials. Only if the copyright holder affirmatively knows they are lying is there any sanction for demanding the takedown. Moreover, “fair use” is not a ground for a reverse takedown notice.

Were copyright holders forced to go to court to obtain the same remedy, they would be required by law to conduct a reasonable pre-filing inquiry about both the facts and the legal theory of the case, and certify that the suit “is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation and that the claims, defenses, and other legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law.” The plaintiff and their counsel would face potential sanctions for wrongfully initiating the litigation.

Essentially, it was this standard that Congress was trying to mimic in the DMCA’s requirement that the copyright holder certify under oath that the use of the work is "not authorized by law." In other words, that if not removed, the posting would support an infringement lawsuit.

To be fair to Universal, they still take the position that they meet this requirement, and that they would be well within their rights to file an infringement lawsuit against Lenz even today. Under Universal’s reasoning, if they detect that someone has quoted or posted or made some use of a copyrighted work of theirs without their consent (or even where consent is contested by Universal), even if it is readily apparent that the use meets all of the tests for fair use, and even where it is therefore readily apparent to everyone -– including the lawyer who sends out the takedown notice -- that any infringement lawsuit will ultimately fail. Even if the takedown notice is sent for an improper purpose (e.g., to quash dissent, prevent unfavorable reviews, or prevent bad publicity) such a notice is effective and is entitled to be given full effect. Even more egregiously, they can request that the person making such fair use be informed of the illegality of their actions.

Not that anyone would ever file such a lawsuit. Indeed, Universal points out that it has never filed an infringement claim against Lenz. And they probably never will. And that’s partly the point. Because it is so easy to issue a takedown notice, and because there is little blowback if you are wrong, its much easier to just automate the process of looking for potentially infringing works, and then issue blanket DMCA takedowns. (In their defense, Universal does clam that a human looked that Lenz’ video before the notice was issued.

A better approach would be to apply the rules of civil procedure to such takedown notices. The party seeking takedown would have to conduct a reasonable inquiry about the nature of the infringing use, and be capable of certifying in effect a likelihood of success on the merits of a potential infringement claim. They would have to also certify that the takedown notice is not being made for any improper purpose, and would have liability for issuing both knowingly false or negligently (or recklessly) false notices. The ISP or other recipient could then demand additional information from the copyright holder (including the results of the good faith investigation) before taking down the material, and would have no liability if such demand was not made for improper purposes. Thus, the takedown would not be automatic.

All of this would require either judicial or legislative clarification. And both bodies move slowly. In the meantime, you can keep yourself entertained by watching a lovely video of a kid dancing but without music this time -- and that would be crazy.