This month, in Lenz v. Universal Music Corp., the U.S. Court of Appeals for the Ninth Circuit addressed an issue of first impression across the nation, holding that copyright owners must “consider fair use” before sending a takedown notice under the Digital Millennium Copyright Act (DMCA). At the same time, the court made clear that a copyright owner need only make a “subjective good faith” evaluation of fair use, not an objectively reasonable one. One of the more important practical questions that remain after the decision is whether copyright owners can use fully automated processes (e.g., algorithms, spiders) to police their copyrights online given Lenz’s directive to “consider fair use.” Can a machine consider fair use?
While the court gave its blessing to algorithms and automated processes for policing some blatant infringements, it ultimately concluded (albeit equivocally) that human review is necessary to evaluate fair use except in instances of verbatim copying of “nearly the entirety of a single copyrighted work.” But it also left untouched voluntary automated processes like YouTube’s Content ID system that don’t rely on DMCA takedown notices.
