This post originally appeared on Smart Content News.
This week’s landmark copyright ruling in the “Dancing Baby” video case was a set-back for the studios and record companies in their efforts to police the use of their works on YouTube and other user-generated content platforms. But it could prove a boon to the fields of computer vision and computer learning.
In a 26-page opinion, the federal Ninth Circuit Court of Appeals ruled for the first time that copyright owners are required to consider fair use before sending a take-down notice demanding that an allegedly infringing video be removed from a website. The lawsuit stemmed from a 29-second video posted to YouTube by Stephanie Lenz showing her toddler “dancing” in the family kitchen as the Prince song “Let’s Go Crazy” played in the background.
Universal Music sent a take-down notice to the website claiming the use of Prince’s music in the video was not authorized.
The court acknowledged the daunting task copyright owners face today given the huge quantity of content online they need to screen for potential infringement and suggested the use of computer algorithms and other automated screening tools could meet the fair use requirement.
We note, without passing judgment, that 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. ..For example, consideration of fair use may be sufficient if copyright holders utilize computer programs that automatically identify for takedown notifications content where: “(1) the video track matches the video track of a copyrighted work submitted by a content owner; (2) the audio track matches the audio track of that same copyrighted work; and (3) nearly the entirety . . . is comprised of a single copyrighted work.”..
After some back and forth involving notices and counter-notices, Lenz. backed by the Electronic Frontier Foundation, sued Universal, claiming Universal misrepresented her use of the Prince song in its take-down notice by failing to consider whether it was a fair use of the work as defined by the copyright statute. Universal moved for summary judgment on the claim, which the district court in the case denied. Universal then appealed that denial to the Ninth Circuit, which upheld the lower court on the fair use question.
The Ninth Circuit’s suggestions regarding the use of computer algorithms in screening videos for infringement and fair use are not binding because Universal was not using them at the time the case was filed and the question was not formally before the court. But if the court’s ruling that copyright owners are required to consider fair use before sending take-down notices ultimately stands, copyright owners are likely to take the court’s suggestion and run with it.
That could create significant pressure to develop more sophisticated tools for screening huge amounts of content and identifying uses that might qualify as fair use.
Fair use is a subtle concept, and is often in the eye of the beholder. As spelled out in the Copyright Act, determining whether a particular use qualifies as a fair use requires consideration of four factors:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Those are all subjective criteria, which is one reason fair use claims are adjudicated on a case-by-case basis. No court would be likely ever to accept the judgment of computer algorithm as definitive. But given the huge number of take-down notices the movie studios and record companies routinely send — YouTube alone processes millions every month — a requirement to conduct at least a minimal review for potential fair use would almost require some level of automation.
The Ninth Circuit’s ruling may not be the final word on the matter, however. The court’s main holdings — that fair use is not merely a defense against a charge of infringement but is expressly authorized by copyright law, and that failing to consider it in a take-down action could subject a copyright owner to liability and damages — are probably not rulings the studios and record companies are willing to let stand. Appeal of the Ninth Circuit’s ruling to the Supreme Court is a definite possibility.
In the meantime, figuring out how to teach a computer to recognize fair use could turn out to be a growth business.