Catch 22: Fair Use and DMCA Takedowns
In Lenz v. Universal Music Corp., the Ninth Circuit created a heightened standard for Digital Millennium Copyright Act (“DMCA”) takedowns. YouTube, a California company, has recently created a team to help tackle the new standard. Tumblr, a New York company without the effect of the Ninth Circuit ruling, has taken a different approach and has actively submitted to the copyright trolls. There is stark contrast between two of the largest user generated content sites.
A consideration of fair use is crucial to the success of user generated content pages such as Tumblr or YouTube. Both service providers seek users who upload content to their own pages. While YouTube has been forced to take steps to analyze fair use before taking a video down, Tumblr has no such filtering process. The main issue is that these platforms have transitioned from hobbies to professions. When users are making their livelihood through these sites, a wrongful takedown can have dramatic affects. There are social media celebrities who are famous for nothing more than their social media accounts. While many upload 100% original content, others may upload copyright protected material but under the category of fair use. These platforms should not ruin the livelihood of users by immediately taking down their products without the consideration of fair use.
The onus should initially fall to the copyright owners who will declare whether they believe the infringement is excluded from liability under the fair use doctrine. For example, if a movie has been copied and uploaded to YouTube, then the copyright owner should indicate that there is little to no chance of fair use. If there is a chance of fair use then those submitting a DMCA takedown should alert the service providers. Since the copyright owners are already monitoring for infringement, they are in a far better position to initially describe any fair use considerations. With this categorized take down request system, service providers can examine fair use much easier than if they had to do the initial fair use check.
A major underlying problem is the DMCA safe harbor clause. Under the DMCA service providers are immune to copyright liability so long as they takedown infringing content upon specific knowledge of the infringement. Due to the safe harbor feature, providers have been quick to remove content at the first inclination of infringement. In order to resolve the issue, there should be room within the interpretation of the law to allow companies the time to review fair use before removing content. Additionally, there needs to be protection for service providers who believe infringement fair use, when a court rules otherwise. Providers need to be safe to make their own internal ruling without the fear of losing safe harbor status.
Following the Ninth Circuits lead, a harmonious system can exist between users, service providers, and copyright owners as long as the owners review for fair use and the providers have room to examine fair use while remaining under the safe harbor statute.