第九巡迴上訴法院:DMCA takedown notification 必須先確認是否為合理使用 (Fair Use)

出自 EFF 的「Takedown Senders Must Consider Fair Use, Ninth Circuit Rules」這篇,案件可以參考「Lenz v. Universal Music Corp.」這篇,或是 EFF 整理的「Lenz v. Universal」這篇,由 EFF 發起訴訟控告環球侵犯合理使用權:

The Electronic Frontier Foundation (EFF) filed suit against Universal Music Publishing Group (UMPG) asking a federal court to protect the fair use and free speech rights of a mother who posted a short video of her toddler son dancing to a Prince song on the Internet.

起因在於 Stephanie Lenz 上傳了一段 29 秒的影片,背景有 Let's Go Crazy 這首歌的音樂,而被環球發 DMCA takedown notification 下架:

Stephanie Lenz's 29-second recording shows her son bouncing along to the Prince song "Let's Go Crazy " which is heard playing in the background. Lenz uploaded the home video to YouTube in February to share it with her family and friends.

後來 Stephanie Lenz 發出 counter notification 並且控告環球濫用 DMCA notification:

In late June 2007, Lenz sent YouTube a counter-notification, claiming fair use and requesting the video be reposted. Six weeks later, YouTube reposted the video. In July 2007, Lenz sued Universal for misrepresentation under the DMCA and sought a declaration from the court that her use of the copyrighted song was non-infringing. According to the DMCA 17 U.S.C. § 512(c)(3)(A)(v), the copyright holder must consider whether use of the material was allowed by the copyright owner or the law.

而環球直接挑明不在意 fair use:

In September 2007, Prince released statements that he intended to "reclaim his art on the internet." In October 2007, Universal released a statement amounting to the fact that Prince and Universal intended to remove all user-generated content involving Prince from the internet as a matter of principle.

於是雙方就從 2007 年開始一路打官司,首先的判決是地方法院認為 DMCA takedown 必須確認侵權事實才能發,這包括了要確認 fair use:

The district court held that copyright owners must consider fair use before issuing DMCA takedown notices. Thus, the district court denied Universal's motion to dismiss Lenz's claims, and declined to dismiss Lenz's misrepresentation claim as a matter of law.

同時認為環球濫用 DMCA takedown notification:

The district court believed that Universal's concerns over the burden of considering fair use were overstated, as mere good faith consideration of fair use, not necessarily an in-depth investigation, is sufficient defense against misrepresentation. The court also explained that liability for misrepresentation is crucial in an important part of the balance in the DMCA.

然後就是一路往上打,打到前幾天第九巡迴上訴法院宣佈維持原來判決定案。這是官方放出的 PDF:「UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT (PDF)」。Summary 的部份提到這次判決的結論:

The panel held that the DMCA requires copyright holders to consider fair use before sending a takedown notification, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law.

這個判決使得目前使用機器自動無條件送 takedown notification 的程式也會受到規範,後續看 EFF 怎麼出招了...

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