By: Jaideep Reddy

On September 14, 2015, the Ninth Circuit in Lenz v. Universal Music laid down the legal standard that copyright holders must meet before issuing takedown notices. Given the scale of online video generation and consumption, this is significant for content generators and copyright holders. Frivolous takedown notices present an important legal and policy issue, and Lenz expounds a legal provision designed to curb just that.

Section 512(f) of the Digital Millenium Copyright Act penalizes any person who “knowingly materially misrepresents” content to be infringing. Since a takedown notice represents that the addressee’s content is infringing, this restriction naturally has consequences for copyright holders. The import of §512(f) was unclear until Lenz. The closest guidance available was the Ninth Circuit’s 2004 decision in Rossi v. M.P.A.A., Inc. Even in that case, §512(f) was not directly at issue. Rossi considered §512(c)(3)(A)(v), which requires an issuer of a takedown notice to state that it “has 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.” Rossi opined that this provision could be juxtaposed with §512(f) to illustrate a statutory scheme which only penalized “subjectively improper” actions by copyright holders, and did not hold them to an “objective reasonableness” standard.

Since the video at issue in Lenz was a “fair use,” the court in Lenz extends the Rossi reasoning to hold that under §512(f), a copyright holder should have “knowingly materially misrepresent[ed]” that it held a subjective “good faith belief” that the offending activity was not a fair use. As a test to determine this, Lenz employs the willful blindness doctrine, taking a cue from Viacom v. YouTube. Applying this doctrine to the context of takedown notices against potential fair uses, Lenz holds that a copyright holder should have: (1) subjectively believed there was a high probability that content constituted fair use; and (2) taken deliberate actions to avoid learning of this fair use. Significantly, the court places the burden of proving these facts on the complainant (i.e., the notice receiver). (The dissent in Lenz has interesting observations on why the use of the willful blindness doctrine may not have been appropriate, and that common law tort principles could have been used to construe the word “knowingly”.)

The Electronic Frontier Foundation (EFF), who represented Stephanie Lenz pro bono, called the decision a win for fair use because copyright holders were expressly directed to consider fair use before issuing takedown notices. In some quarters, however, Lenz has been called a hollow victory because its requirement is too easy to meet, and requires a “mustache-twirling level of intentional villainy” by the copyright holder. This phrase does not appear to far off the mark.

Lenz observed that an algorithm-based takedown mechanism, with a minimum degree of human supervision, would pass the subjectivity test. Automation can undoubtedly quicken the detection of clearly infringing content (e.g., Youtube’s Content ID system). But the risk with blessing such an approach per se, without looking into the merits of each decision of the copyright holder, is that corporations can easily establish form-based paper trails to show their subjective belief. This does not meet the spirit of the statute.

The burden of proof on content generators, often individuals or small organizations, is also unconscionably high. For instance, it is hard for a teenage D.J. to prove that Universal Music believed with a high degree of probability that his or her track was not fair use, and moreover, that it took deliberate actions to avoid learning of the fair use.

But YouTube has emerged as (a perhaps unlikely) savior of its uploaders. In November 2015, Google announced that YouTube will “now protect some of the best examples of fair use on YouTube by agreeing to defend them in court if necessary.” YouTube will not take down such videos in the U.S. in response to notices. In addition, and in what might be the most significant aspect of the program, YouTube will feature these videos in the YouTube Copyright Center as prominent examples of fair use. While YouTube retains the discretion to hand-pick the videos it will defend, this is clearly a positive step overall.

YouTube’s stance can act to significantly reduce the burden of content generators in meeting the Lenz standard. If a takedown notice is sent in respect of a video that uses copyrighted content in the same (or highly similar) manner that a video in YouTube’s Copyright Center does, a defendant may find it easier to prove that the copyright holder “knowingly materially misrepresented” the infringement.

Such a repository of fair use instances can also be used as impetus for shaming parties who send frivolous notices. Even assuming the Copyright Center does not help set legal precedent, it can help create an Internet norm against frivolous notices.

With court systems ill-designed to adjudicate questions fast enough to keep pace with life on the Internet, self-regulation led by prominent actors increasingly seems to be the way forward in this and other policy issues online.