This week the U.S. Court of Appeals for the 9th Circuit ruled that Stephanie Lenz’s 2007 YouTube video of her baby dancing along to a Prince song constituted a fair use of said Prince song, invalidating Universal’s DMCA takedown of the video and establishing a precendent that rightsholders must “consider fair use” before issuing such takedowns.
On the surface this seems to have significant implications for the game industry. Many YouTubers who record themselves playing and talking about games have been on the receiving end of DMCA takedowns — Nintendo cracked down on a Mario speedrunner/ROM hacker’s YouTube channel just last week — but legal experts consulted by Gamasutra say that, in practice, this probably won’t meaningfully change anything.
“Procedurally, while this is clearly a ‘win’ for the fair use party, I think it’s a nominal win,” says video game attorney (and occasional Gamasutra blogger) Mona Ibrahim. “Copyright holders will not hesitate [to issue a DMCA takedown] if there is a mere possibility that a use might be fair use—they will read this in the narrowest way possible, e.g. there must be an actual awareness that the use is a confirmed fair use before refraining from sending a takedown notice.”
And since YouTube usually automatically delists videos targeted for DMCA takedowns, the onus is still on YouTubers to successfully contest unfair takedowns on the grounds of fair use. Now they might have a stronger position from which to do so (though Ibrahim believes a case can be made that Let’s Play videos do not constitute fair use) but they’ll likely face just as many automated takedowns going forward.
“The court is trying to balance the needs of a copyright holder to deal with a flood of potential infringement, versus the requirement in the DMCA that the holder have a good faith belief that their content is being infringed,” says video game lawyer Zachary Strebeck. “In doing so, they’ve put in place the bare minimum of a hurdle that must be overcome in forming that good faith belief. This allows the continued use of automated takedowns, which the court explicitly says are a ‘valid and good faith middle ground’ in this issue.”
It’s worth pointing out here that Strebeck also blogs on Gamasutra, and has written in the past about how game developers should respond to DMCA takedowns and issue takedowns themselves against potentially infringing content, on YouTube or elsewhere. Both are worth reading for more insight into this issue.
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2015