In Copyright Roundup Part I we discussed the fair use of an “aesthetically displeasing” photograph, copyright protection for cheerleading uniforms, and copyright ownership for non-human authors. In this post we will discuss the latest development in the Google Books litigation, fair use considerations in issuing DMCA takedown notices, and the public domain status of Happy Birthday to You.
Another fair use win for Google in most recent Google Books lawsuit.
Many of our readers are familiar with the Google Books litigation which began in 2005 when a number of publishers and the Authors Guild brought separate lawsuits against Google for Google’s Library Project. As part of the project, Google partners with research libraries to digitize works in the participating libraries’ collections. Digital scans of books are indexed and added to Google Books, providing the public with the ability to do full-text searches of terms within the books. Users can use the full-text search function in Google Books to determine how many times a particular term appears in any book within the Google Book collection. Absent an agreement with the copyright owner, Google does not provide the full scans to the public. Users can, however, see snippets of text containing the searched-for terms. Additionally, Google provides a digital copy of the scanned book back to the submitting library.
On October 16, 2015, the Second Circuit affirmed the lower court’s decision, holding Google’s digitization activities to be a transformative fair use. In analyzing the fair use factors, the court identified Google’s new purpose in providing otherwise unavailable information about the books, allowing users to identify works that include (and do not include) terms of interest. The court also found the snippet view to add important value to the search function, providing users with the context necessary to determine if the book fell within their scope of interest. While Google is a for-profit company, the Google Books project is provided as a free service without advertising. The court found Google’s ultimate profit motivation was not enough to deny a fair use finding in light of other factors, including its transformative purpose in using the works.
The court held that use of the entire work was reasonably appropriate to achieve the transformative purpose of enabling a full-text search function. For the snippet view feature, Google had a blacklisting process in place to permanently block about 22% of a book’s text from snippet view. In addition, researchers for Authors Guild were only able to access an aggregate of 16% of a text. The fragmented and scattered nature of the snippets results in an insubstantial amount of the work being displayed.
The court held the search and snippet view functions did not serve as a competing substitute for the original works. While snippet view may cause some loss of sales it did not rise to the level of meaningful or significant effect upon the potential market or value of the copyrighted work required to tilt the fourth factor in favor of the Authors Guild.
Finally, the court held that providing library partners with the digital copies of the works in their own collections was not infringing. Whether the libraries would then use the copies for infringing purposes was mere speculation and insufficient to place Google as a contributory infringer.
Why does it matter?
Despite ongoing litigation, Google continued their partnerships with libraries to digitize works in library collections, meaning they faced huge potential costs in damages. Consequently, this decision was a big fair use for Google, partnering libraries, and the public who use Google Books.
In his opinion, Judge Leval emphasized the goal of copyright to expand public knowledge and understanding, making the public, rather than the individual author or creator of a work, the primary beneficiary of copyright. Google’s activities served this goal. Public knowledge was augmented by making available information about the scanned books without serving as a substantial substitute for the copyrighted works.
The Authors Guild has indicated their intention to appeal the ruling but it will be up to the U.S. Supreme Court to decide whether they will hear the case.
Fair use and DMCA takedown notices: Lenz v. Universal Music Corp.
On September 14, 2015, the Ninth Circuit filed an opinion in the “dancing baby case,” a case involving a video clip of a young toddler dancing to Prince’s song “Let’s Go Crazy.” The 29-second video was uploaded by Stephanie Lenz to YouTube and removed following the issue of a takedown notice from copyright owner Universal Music Publishing Group. Ms. Lenz submitted a counter-notice, raising a fair use defense, and filed a civil lawsuit under the Digital Millennium Copyright Act (§ 512(f)) asserting that Universal had knowingly misrepresented Ms. Lenz’s use of the Prince composition as constituting an infringing use.
All DMCA takedown notices must include a statement that the complaining party has a good faith belief that use of the work is not authorized by the copyright owner, an agent of the copyright owner, or the law. What role does fair use play in this process? Is fair use a use that is authorized by the law? The Ninth Circuit answered this question with a “yes.” Simply put, complaining parties must consider fair use before sending a DMCA takedown notice. Failure to do so will raise a triable issue as to whether the complaining party possessed good faith belief that use of the work was not authorized. The consideration is not whether a court would rule a use a fair use, but whether the complaining party possessed a subjective good faith belief that use of the work was not authorized.
Why does it matter? Fair use is an important defense in U.S. copyright law that acts as a check on the exclusive rights of copyright owners and serves the necessary role of fulfilling copyright’s purpose to promote the progress of knowledge. Requiring complaining parties to consider fair use before issuing a DMCA takedown notice may encourage the lawful uses of works and mitigate censorship.
At the time Stephanie Lenz’s video was removed, YouTube had not yet implemented their Content ID system. YouTube’s Content ID system automatically scans uploaded videos and compares those videos to a database of content submitted to YouTube by copyright owners. If there is a match, copyright owners may elect to mute the audio, block the entire video, monetize the video through the placement of advertisements, or track viewership statistics. Prior to the Content ID system, copyright owners relied on their own individually assigned employees to monitor YouTube activity. It remains unknown how the holding of this case may impact Content ID or other automated systems that operate to remove content automatically upon finding a sufficient match.
The fair use of a work is determined on a case-by-case basis after all four fair use factors have been balanced. To what degree may copyright holders rely on a computer or automated system to aid in a fair use analysis? The Ninth Circuit seems to indicate that in some circumstances use of computer algorithms may be utilized in fact-intensive analyses, recognizing that copyright owners may face an onerous burden of reviewing works when processing large amounts of content.
Copyright dispute continues over Happy Birthday to You lyrics.
On September 22, 2015, the U.S. District Court for the Central District of California issued a ruling in a lawsuit filed to declare Warner/Chappell’s copyright interest in the lyrics to Happy Birthday to You invalid. The history of the Happy Birthday song is long, going back to 1893 when Mildred and Patty Hill first published the song Good Morning to All, a song sharing the same melody as Happy Birthday.
Questions have since been raised regarding the authorship of the lyrics, the authorized publication of the lyrics, and the validity of any transfer of ownership in the lyrics. The facts of the case are complicated, with ambiguity surrounding the timeline of events. For a more detailed history of the song, the history of the lawsuit, and the arguments made by both sides, read Tyler Ochoa’s blog post, “Chain of Title Proves Fatal to ‘Happy Birthday’ Copyright Claim.”
In this case, the court found no evidence that the Hill sisters transferred rights to the lyrics, based on a 1934 agreement between the Hill sisters and Summy Co. (Warner/Chappell’s predecessor-in-interest).
Why does it matter? Does this holding mean that you’ll start hearing Happy Birthday to You at your favorite family restaurant? Not quite. The court held that Warner Chappell did not hold a valid copyright in the Happy Birthday lyrics but did not make a determination as to the current copyright owner or declare the lyrics to be in the public domain. These issues must be resolved by a jury and will be impacted by a recent claim from The Association for Childhood Education International (ACEI) and the Hill Foundation, who have asserted themselves as the current valid owners of the copyright as heirs of the Hill sisters. In addition, the court will still have to resolve whether Warner/Chappell must refund royalties collected for Happy Birthday in the four years before the lawsuit was filed.
Warner/Chappell has asked for reconsideration of the ruling. Having long asserted their copyright ownership in the song, Warner/Chappell receives a reported $2 million a year in licensing revenue from the song. If the court’s ruling stands, Warner/Chappell stands to lose approximately $30 million in licensing revenue ($2 million a year until the anticipated expiration of copyright protection in 2030). Good Morning to You Productions, plaintiffs in the case, have also asked for reconsideration to determine whether Happy Birthday is definitively in the public domain.
The past few months have provided us with some interesting and important legal decisions regarding fair use, useful articles, DMCA takedown notice protocol, and copyright authorship. We have highlighted a few of these cases and developments in our Copyright Roundup series. For further updates on these cases and to learn about new copyright updates, continue to watch our blog and follow us on Twitter @OSUCopyright.
By Maria Scheid, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries
 Library Copyright Alliance has produced a Google Books Litigation Family Tree at http://www.librarycopyrightalliance.org/storage/documents/google-books-litigation-tree-16oct2015.pdf (last updated October 16, 2015).
 17 U.S.C. § 512(c)(3)(A)(v).
 In non-binding dicta, the court states, “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… Copyright holders could then employ individuals like Johnson to review the minimal remaining content a computer program does not cull.” Id. at 19.
 Robert Brauneis, “Copyright and the World’s Most Popular Song,” 56 J. of the Copyright Soc’y of the U.S.A. 335 (2009).