By Ari Robbins

Digital Millennium Copyright Act (“DMCA”) takedown notices are headed to the Supreme Court where they could themselves be facing a takedown. These notices are issued outside of a court process and are supposed to warn online hosts that content on their websites might constitute copyright infringement. Per the Ninth Circuit decision that is headed to the Court, Lenz v. Universal Music Corp., the sender of a takedown notice must have a subjective belief that material related to a notice is not fair use. Imposing such a standard has far reaching implications for all senders  and recipients of DMCA takedown notices.

DMCA opponents claim that the Lenz ruling does not do enough to protect lawful content from being inappropriately removed from the internet. This argument continues the more than decade-long controversy that has followed DMCA takedown notices.

In Lenz, also known as the “Dancing Baby Case”, plaintiff Stephanie Lenz posted a video of her young son dancing to the Prince song, “Let’s Go Crazy.” Universal Music Group (“UMG”), the Copyright owner of “Let’s Go Crazy”, sent YouTube a DMCA takedown notice. As a result, YouTube removed Lenz’s video.

The Electronic Frontier Foundation (“EFF”) sued UMG on behalf of Lenz, asserting that UMG’s DMCA takedown notice unjustifiably threatened Lenz’s fair use of “Let’s Go Crazy”. Key to Lenz’s argument was that “fair use” of content is protected by the First Amendment even though it may concurrently be the subject of a copyright.

The wrinkle introduced by the DMCA was that when a content host received a DMCA takedown notice, it could avoid liability entirely by simply removing the content, even content that wouldn’t constitute copyright infringement because of fair use. And while the DMCA provided a provision to contest a takedown notice, typically a host wouldn’t bother responding on behalf of a user and many users didn’t have the ability or the resources to fight a notice on their own. Furthermore, even if a host responded by contesting the takedown notice, the content usually would still be removed in the mean time. Therefore, opponents of DMCA takedowns argued that free speech was suppressed without adjudication, a First Amendment violation.

The EFF argued that the DMCA required UMG to have a good-faith reasonable belief that Lenz’s use was not authorized by law before issuing a takedown notice, with the hope that a higher belief standard would curtail abuse of the DMCA and give adequate deference to the safeguards congress intended when drafting it. The Ninth Circuit only partially sided with Lenz, however, as its ruling did not produce a reasonable belief standard. Instead, the court ruled that the sender of a DMCA takedown notice should make a subjective good-faith determination that content use is not protected fair use. The EFF remains troubled that the court’s laxer standard continues to allow corporate free-speech censorship.

What’s more, private citizens’ use of DMCA takedown notices to tackle cyber harassment were also impacted by the Ninth Circuit’s decision. As one example, consider that the campaign Boycott Divestment and Sanction (“BDS”), which is directed at Israel’s policies toward Palestinians, recently used a DMCA takedown notice in response to a website called “Canary Mission.” Canary Mission posted hundreds of student and professor names, contact information, and Facebook content. It claimed those listed were promoting hatred of the US, as well as Israel and Jews on college campuses in North America. Tort cyberbullying claims did little to remove the content, partly because of the lack of federal cyberbullying statutes and partly because the website creators’ identities were unknown. As a result, a DMCA takedown notice became a last-ditch effort for the targeted students and professors to tell the website hosts to remove the content from their servers. Because the website hosts had no affirmative duty to investigate any copyright infringement, Canary Mission was shut down. Post-Lenz, DMCA takedown notices were effectively removed as one means of response for targeted individuals because the individuals like those listed on Canary Mission don’t have the resources to gather a subjective determination of a fair use violation of copyright content. Canary Mission has since relocated and remains online.

Hence, the U.S. Supreme Court’s judgment on the Dancing Baby Case may proof critical. We wait to see whether SCOTUS will find that the Ninth Circuit contravened Congress’s intent to prevent abuse of DMCA notices by producing a laxer subjective standard, which still rendered online fair use vulnerable to private and corporate censorship.

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