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.