If a video posted for public consumption through the Internet contains a segment of copyrighted music, can an algorithm effectively determine whether the inclusion of that music constitutes fair use?

That’s the central question in what is turning out to be a landmark case in the history of US copyright law. In Lenz v. Universal Music Monday, a three-judge panel of the Ninth Circuit Court of Appeals upheld a lower court’s decision in favor of an individual, Stephanie Lenz.

Let’s Go Crazy

Stephanie LenzOver eight years ago now, Lenz posted a 29-second clip of two toddlers in her family dancing to a Prince song called “Let’s Go Crazy” — a video that now boasts over 1.3 million views, thanks in large measure to this case.

At issue in this case, as raised by Lenz’ defense, is not whether her inclusion of the Prince song segment constitutes fair use. It’s the question of whether Universal Music Group (UMG, formerly MCA Music Entertainment Group) adequately considered Lenz’ rights before initiating the process that culminated in a takedown notice under the Digital Millennium Copyright Act.

The implications of this simple case for the whole of online media are huge. With Lenz having emerged the victor once again, it would appear that any copyright holder cannot rely upon an automated process, such as an algorithm, to determine whether a suspected violator was conscious of those rights allegedly being infringed upon.

The case was argued before the Ninth Circuit Court of Appeals in San Francisco last July 7.

There, Judge Milan Smith asked counsel for UMG, “Is it fair to say that ... there was no attempt made to determine whether fair use was being made of Mr. Prince’s music?”

“It is fair to say, Your Honor, that there was no consideration of fair use, in the way that the plaintiff and the District Court defined it,” responded the counsel for UMG.

The crux of the defense is that the “rapid response mechanism” enabled by Congress for combatting the rising tide of copyright infringement, has to apply itself to unfathomable millions of cases, including filtering through some 300 hours uploaded per minute by individuals to YouTube alone.

Expanded to a broader scope, the defense’s argument contended it is not possible for copyright holders to police the entire Web to ferret out every conceivable instance of potential copyright violation. At some point, rights holders have to rely upon technology — which, in turn, means automation.

Surprisingly, that’s not what UMG actually did. Given that Prince personally and specifically requested that his music never be used in “synchronizations” with amateur productions, the music group hired an independent analyst to review several select cases, including Lenz’ video.

Lenz contended that this analyst may have found good reason to believe her video did constitute fair use, but intentionally withheld that analysis from UMG. The Ninth Circuit actually upheld the District Court’s finding that Lenz may not pursue this “willful blindness” test in her defense.

But that’s actually bad news for copyright holders in the long term. It means Lenz can pursue the test of whether DMCA takedown notices are effectively invalid if they imply that copyright holders have any kind of subjective knowledge of willful copyright violation, when no such analysis may take place at all.

And if a copyright holder can’t be certain where human analyses did take place and where they didn’t, it could still mean all takedown notices from someone using algorithmic analysis, may be invalid — or, in the worst case, illegal.

Sign o’ the Times

It isn’t that algorithms should not be used at all, the panel believes.

“The implementation of computer algorithms appears 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,” writes Judge Richard Tallman.

Algorithms could still be used to locate tracks where substantial segments of potentially infringing content appear.

But then, Judge Tallman suggests, rights holders should retain a human analyst on the back end: “Copyright holders could then employ individuals... to review the minimal remaining content a computer program does not cull.”

Monday’s victory for Ms. Lenz upholds her right to continue pursing UMG, on the theory that it misrepresented its own position in the DMCA takedown notice, with this language: “We have a good faith belief that the above-described activity is not authorized by the copyright owner, its agent, or the law.”

Even if Lenz eventually loses her case, which may very well still happen, this particular finding may give others grounds for action against the issuers of takedown notices, when they cannot actually prove any such “good faith belief” exists.

Put another way, a computer or a cloud server cannot store a good faith belief.

Lenz’ counsel was provided for her by the Electronic Frontier Foundation. Its legal director, Corynne McSherry, issued a statement Monday which reads in part, “We’re pleased that the court recognized that ignoring fair use rights makes content holders liable for damages.”

That may actually be a step too far: No one has found UMG liable for damages, nor determined that Lenz’ rights actually were violated — not yet.

But for any company that has a recognizable brand or jingle, or any candidate who has a recognizable slogan or coiffure, it means that human beings must make the final determination before a court accepts a DMCA takedown notice as legitimate.

Anti-piracy detection services such as Digimarc claim to use human review processes, in order to minimize false positives. Claims Digimarc’s marketing, “It’s impossible for a single publisher or author to monitor all the dark reaches of the Internet.”

Thieves in the Temple

During oral arguments last July, counsel for UMG warned the panel that their ruling would apply to all copyright holders. In cases limited to Google Search, he said, the Motion Picture Association of America issues 2.5 million takedown notices per month, and the Recording Industry Association of America some 2 million per month.

These takedown notices are the mechanism permitted by Congress — and right now, it’s the only one.

“The statute simply can’t function as a rapid response mechanism,” he argued, “if somebody has to look at something [and] somebody has to make a decision... Fair use is simply not a mechanistic exercise... There are multiple factors that have to be considered, when deciding what is fair use.”

This was the statement of UMG’s counsel. Given the weight of those words, it’s a wonder that Lenz’ attorneys had to make any statements in her defense at all.

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