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March 31, 2016 -

Ninth Circuit Revises Dancing Baby Decision

by Christopher Dodson and Andrew Baer

The U.S. Court of Appeals for the Ninth Circuit issued a decision in Lenz v. Universal, the so-called “dancing baby” case, last September.  At the time, our firm wrote about its background and significance.  The court’s holding was essentially that a copyright holder must consider whether a potentially infringing use of its copyrighted material could be a fair use before sending a take-down notice under the Digital Millennium Copyright Act (“DMCA”), and failure to do so could result in a damages award.

The original decision included language that seemed intended to limit the scope of the copyright holder’s affirmative duty to consider fair use.  The rights holder’s “consideration of fair use need not be searching or intensive.”  The court also noted that employing “computer algorithms” seemed “to be a valid and good faith middle ground for processing a plethora of content while still meeting the DMCA’s requirements to somehow consider fair use.”

However, on March 17, the Ninth Circuit issued a revised decision that removes entirely the limitations on the rights holder’s duty described above.  The result is seemingly to increase the degree to which a rights holder must consider fair use prior to issuing a DMCA take-down notice. Since the decision is now silent on the issue, it is not altogether clear exactly what type of review a rights holder must undertake. But whatever the required review is, the rights holder must arrive at a subjective good-faith belief that a third party’s use of its copyrighted materials is not permitted under fair use before issuing a DMCA take-down notice.

Removal of the reference to algorithmic processing does not necessarily indicate that some level of human review is required. But it probably means that relying solely on current automated processes to generate takedown requests will not be sufficient to establish a good faith belief.  To the extent automated processes are relied on for issuing DMCA take-down requests, they will need to either account in some way for fair use or flag potential infringement for human reviewers to evaluate.  Any human reviewers involved will need to have knowledge of how to evaluate fair use, of course.

There will undoubtedly be further litigation on the subject as copyright holders attempt to enforce their rights while staying within the not-entirely-clear boundaries set by the Ninth Circuit.