It’s relatively easy to send a copyright takedown notice. If someone uploads your copyrighted content to a website illegally, you can send a simple notice to the site, on an email address they have to provide, and they have to promptly take it down. It’s a process that happens thousands, if not millions, of times a day. But this process can be abused. People have used takedown notices to silence criticism and opposing political viewpoints, often when the uses are fair uses, or even when the senders of the takedowns don’t own any copyrights in the material they’re trying to quash. Others will spam service providers with automatically-generated takedowns, paying no attention as to whether or not the takedowns they’re demanding make any sense at all.
Stephanie Lenz received a just such a bogus takedown notice from Universal Music. She filmed her baby running around her kitchen and dancing to music she had on the radio, and uploaded the home video to YouTube. The music, which you might be able to make out over the background noise, is “Let’s Go Crazy,” by Prince. Weirdly enough, this earned Lenz a takedown notice, despite the fact that no one involved seems to dispute that this home video makes fair use of the song (if it “uses” the song at all).
The law provides penalties for people who send false takedown demands, but in this case, Universal argues that it shouldn’t have to pay that penalty, because it can’t be expected to get the law right before yanking stuff off the Internet. This dispute is now before a federal appeals court in California. Last Friday, we joined the Organization for Transformative Works and the International Documentary Association in filing a brief supporting Lenz’s argument that you can’t send takedown notices for uses that are clearly fair.
Universal’s argument is that fair use is hard to determine, and that it’s justified in sending takedown notices as long as they think one of their copyrighted works is being used. While lots of fair use cases are difficult to determine, there’s some incredibly easy cases, too. (Lenz’s is one of them.) More than that, though, Universal’s argument—that it doesn’t bear any responsibility for bogus takedown notices unless it’s absolutely sure that they’re bogus and sends them anyway—would actually give copyright holders a real incentive to shoot first and ask questions later. In fact, it would encourage them to prevent their lawyers from looking at close cases to see whether or not the use might be fair. If they can claim they just didn’t know, they can escape the penalty.
In fact, it’s exactly that sort of mindless sending of notices that the penalty for false notices should try to prevent. Rightsholders often talk about how many clear infringements they face, compared to how few fair uses. That sort of percentage would seem to make it easy to flag for review the few that weren’t automatically detected as straight lifts of the original works.
In the end, it’s critical that the safeguards built into the law against false and abusive takedowns have some actual teeth, both to prevent malicious abuse of the system, and to prevent the sort of careless disregard for the truth that leads to fair uses being removed from the web. Hopefully, those protections will be upheld in this case.