Chilling effect: the slow death of copyright fair use?

The internet offers an abundance of opportunities for users to express themselves online, but a famous case may be bad news for people using social media in the US.

Anyone who has ever worked in an office will have been sent an email containing a cat video set to music by a colleague. Sometimes, months can go by and by the time you decide to watch the funny video again it’s been removed because of copyright infringement.

This is similar to what Stephanie Lenz experienced in the ‘dancing baby’ lawsuit, a now long-running saga with the potential to reach the US Supreme Court. Lenz had uploaded a 29-second video of her young son dancing to Prince’s “Let’s Go Crazy”.

Universal sent YouTube a take-down notice under the Digital Millennium Copyright Act (DMCA) informing it that the video was not authorised and that YouTube should remove it.

In 2007, rights group the Electronic Frontier Foundation (EFF), sued Universal on Lenz’s behalf at US District Court for the Northern District of California for wrongfully targeting what she thought was lawful fair use.

The case found itself at the US Court of Appeals for the Ninth Circuit, with the decision handed down in September 2015. This is where the problems began.

The court ruled that copyright owners must consider whether allegedly infringing content has been used fairly before requesting that it is taken down from websites under the DMCA.

But, according to Paul Fakler, partner at law firm Arent Fox, the court then essentially undercut the utility of the ruling.

“The court concluded that the good-faith belief can be a purely subjective belief. As long as there’s some process in place that arguably takes fair use into account, no matter how objectively unreasonable that determination is with respect to fair use, that will be good enough,” he says.

“If the court realises how significant this case could be in terms of the chilling effect on social media use, this could be a reason to grant certiorari.”

Essentially, the court ruled that as long as a copyright owner has a good-faith belief that it will prevail with a fair use claim, that is sufficient for filing a DMCA request.

Kristen McCallion, principal at Fish & Richardson, explains: “Although the decision was helpful in that it solidified the copyright owner’s responsibility to do something, it did produce vagueness. This needs to be clarified.”

In August this year, the EFF petitioned for a writ of certiorari asking the US Supreme Court to consider the copyright dispute and whether the Ninth Circuit had erred in its judgment.

The fair use requirement is one of the few protections in the DMCA; it is there to protect consumers and individuals who use the internet for posting and communication, according to Fakler.

“If the court realises how significant this case could be in terms of the chilling effect on social media use, this could be a reason to grant certiorari,” he says.

Possible trouble

If the court refuses to hear the case, consumers could be in for a whole host of problems.

“Unfortunately, if the one provision of the DMCA that is supposed to protect people from frivolous claims has now been held to not really be available, it could mean that people will become less active in social media,” adds Fakler.

McCallion disagrees and believes that although the opinion has been somewhat vague and open to interpretation, social media users are not likely to become less active.

She adds: “I expect the status quo to be maintained. Now and for many years prior, there have been a lot of takedowns sent as a result of software designed to pick out instances of infringement. This means that we will continue to see takedowns based on a vague standard of a subjective belief of infringement without truly doing a fair use analysis.”

Additionally, if a consumer posts a video on YouTube and gets caught up in a fight, it could be up against million-dollar record companies and have little chance of success.

Fakler says: “If you have to litigate, you will have to prove subjectively that the person who submitted the takedown notice did not have a belief that there was no fair use. Proving this state of mind is almost impossible.”

A refusal from the Supreme Court doesn’t necessarily mean that the case will be forgotten. The saga could continue in another circuit, which may produce a different ruling.

Both lawyers agree that a difference of opinion, a so-called circuit split, may cause the Supreme Court to take notice and eventually agree to review the case, so for now it seems to be a case of sit tight and wait.