Fair Use – It’s the Law (for what it’s worth)–Lenz v. Universal

DMCA notice & takedown provisions upheld in Lenz v. Universal

By Ethan Ackerman

A recent ruling in Lenz v. Universal shows just how far being right about something can get you – barely past a motion to dismiss. It just may force a bit of change, too.

Wednesday’s ruling in Lenz v. Universal is being characterized by most press coverage as “requiring copyright owners to consider the fair use doctrine before issuing takedown notices.” For most purposes, that’s an accurate summary of the ruling.

The statute requires it, right?

What the court gets right in Lenz is its conclusion that the statute means what it says. More specifically, Lenz upheld the statutory requirement that a notifier have a “good faith belief that use of the material in the manner complained of is not authorized by … law, as stated in 17 USC 512(c)(3)(A). One of Lenz’s core claims in the case was that her use of Universal’s music was a fair use, and thus “authorized by law.” The fact that it was authorized by the fair use provision of copyright law made Universal’s assertion otherwise a misrepresentation, Lenz contended.

Judge Jeremy Fogel agreed, holding that “an activity or behavior ‘authorized by law’ is one permitted by law or not contrary to law” and since “fair use is a lawful use of a copyright,…in order for a copyright owner to proceed under the DMCA with ‘a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,’ the owner must evaluate whether the material makes fair use of the copyright.”

Faced with such clear statutory language, Judge Fogel found Universal’s arguments, roughly that ‘fair use is hard to figure out’ and ‘fair use isn’t really law so much as an exception to the law,’ were lacking.

So how’s this not a win for Lenz?

While the opinion so far seems a pretty cut-and-dried win for Lenz (and her attorneys at the EFF,) Judge Fogel looks to the next step of this litigation and points out that being right on the law isn’t enough. There are facts that must be proven too. In a complex judicial process called ‘telegraphing an opinion and dropping hints,’ Judge Fogel states that “the Court has considerable doubt that Lenz will be able to prove that Universal acted with the subjective bad faith required….”

These DMCA notice provisions are a two-edged sword, and 9th Circuit precedent has further narrowed the provisions such that the other edge is sharp indeed. The notice provision requiring a “belief” that the post isn’t authorized by the owner or the law merely requires that the notifier have a “good faith belief,” not a legal certainty. Additionally, Judge Fogel points out under a prior case, Rossi v. MPAA, that “subjective bad faith” must be shown to disprove good faith. In other words, Lenz has to show that Universal (roughly) knew, or possibly should have known, the use was fair and sent the notice anyway. While EFF has made a point of lining up an impressive array of facts that may push this particular case over the edge, bearing the evidentiary burden of proving the actions and intentions of an adversary is a heavy burden indeed.

But wait, what if this letter wasn’t even under the statute?

Another unsettled issue in this case may pop up on appeal or in similar cases. As detailed above, Lenz came out this particular way because the judge followed the clear wording of the DMCA provisions. An unaddressed part of Universal’s argument, and one likely to pop up again in similar cases or possibly on appeal, seems like it may well moot this holding. Universal argued (albeit just in a footnote) that the DMCA statute didn’t apply from the get-go because Universal didn’t send a DMCA notice. Universal argued that it shouldn’t be held to the particulars and penalties of the DMCA because its letter to YouTube wasn’t a DMCA notice, just a request letter.

Judge Fogel’s order simply doesn’t address this argument. It’s a good one (or a particularly bad one, depending on one’s view) too, especially in light of other recent litigation developments and the procedural history of the DMCA notice provisions. These DMCA provisions make up a regime for take-down notices and copyright safe harbors, but they likely aren’t the only regime in town.

Even before the DMCA was enacted, an ISP was often not liable for the infringements of its users. Similarly, pre-DMCA a content owner could ask that an ISP remove content via a nice (or not) letter to the ISP. The DMCA legislation created a structured system to give more legal certainty in this area, but it is likely not the exclusive way in which content owners can notify ISPs – at the very least no court, including Lenz, has yet said it’s the exclusive way.

The Lenz judge treated Universal’s letter as a DMCA notice, even though it said on its face it wasn’t. A good argument could be made on the facts of this case that it had to be treated as one, but that may not always be the case. Content owners increasingly seem to be making similar claims outside of the DMCA process, or even arguing that DMCA safe-harbor compliance isn’t enough, and at some point a court might well accept such an argument.

[Eric’s addition: I think Ethan is onto something regarding the types of takedown notices that trigger 512(f). For example, would an inappropriate NOCI under the eBay VeRO program be governed by 512(f)? This issue was sidestepped in prior litigation over 512(f) and eBay NOCIs. See Dudnikov v. MGA Entertainment. However, in the future, as Ethan points out, 512(f) defendants might claim that their C&D or other takedown request wasn’t made under 512(c)(3) to try to escape liability under 512(f).]