US copyright law shake-up: Days of flinging stuff on the web and waiting for a DMCA may be over

Two big cases barreling through America's courts

Not fair

You might imagine then that it was a solid, considered piece of work. And in some respects it is. But its overall conclusion has lawyers all over the US shaking their heads.

The Ninth Circuit reached a compromise solution that displeased both sides. Everyone agrees that the video in this case was a solid example of "fair use": it was not a video created to make money; it was clearly not a video focused on the music; it was only a short clip; and hardly anyone had viewed it. Done.

The court decided that in future, copyright holders must consider whether there is fair use of its material before it sends a DMCA notice. Universal doesn't like this because it puts the onus on it to consider people's use of their material before firing off legal letters; it would much rather have free rein.

But the court also said a copyright holder can form its own opinion of whether something is fair use or not, rather than be held to a judge-decided standard.

The court was clearly trying to be helpful by not opening up media companies to potentially thousands of new lawsuits. And it also flagged automated systems as a possible solution, which would mean large companies don't need to hire dozens of people to scour websites looking for copyrighted material.

But that also meant that Lenz had spent a decade in court fighting an unreasonable action and the company got to simply walk away. What's to stop Universal – or anyone else – doing it again?

The most intriguing part of the Solicitor General's note to the Supreme Court, however, is its claim that the Ninth Circuit considered completely the wrong thing when it decided that Universal was not liable.

In fact, it says that the appeals court made a "significant legal error" when it focused on "the truth or falsity" of Universal's claim that it had acted in good faith – ie, whether Universal had bothered to carry out a review into whether the video was infringing before firing off a takedown notice.

If it had – even if it was wrong – then it was not liable; if it hadn't but then lied and said it had, then it could be liable.

Knowledge is a powerful thing

Instead, the Solicitor General's paper states, the appeals court should have focused only on whether Universal had "knowingly misrepresented petitioner's video to be infringing," ie, it knew it was fair use but sent the takedown request anyway.

In this respect, it is very similar to the LiveJournal case: they knew the pictures were copyrighted but published them anyway.

The problem with this, however, is that it would almost certainly open up Universal to liability because the baby-dancing video is so obviously an example of fair use.

Amazingly, the Solicitor General directly acknowledges this fact and even gives it as the reason for why he is recommending that the Supreme Court not hear the case.

The court of appeals' analysis thus contains a significant legal error, and one that could give rise to unwarranted Section 512(f) liability in a case where the challenged material actually was infringing. This case does not provide a suitable vehicle for correcting that mistake, however, because the error potentially benefits petitioner and respondents have not sought review of that aspect of the court of appeals' decision.

Now, to be fair, the Solicitor General is saying the issue at the heart of its argument shouldn't be considered because it wasn't put forward by Lenz's legal team. But even so, it is a somewhat ludicrous state of affairs when the Solicitor General identifies what he says is a fundamental flaw in a critically important piece of law and then basically says "but let's just ignore it for now."

Again, however, the main issue will come down to the question of "actual knowledge." Did Universal really know that the baby video was fair use and sent the takedown notice anyway – or was it just a mistake? And that brings a whole range of other questions, such as: what would amount to "willful blindness" on the part of a copyright holder?

The end result of this – if the Supreme Court goes with the recommendation – is that both online publishers and copyright holders will be working to a legal standard that everyone knows is waiting to be overturned. Not exactly an ideal situation.

And so we are waiting on both a district court and the Supreme Court to make decisions about where we go from here when it comes to online copyright issues.

One thing does appear to be certain, however: the law is slowly requiring people to put more effort into deciding whether copyright is being infringed before taking action. That is a logical shift but one that is going to have huge ramifications. ®

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