A federal court in Massachusetts ruled that a copyright holder may send a takedown notice to an online platform based on a subjective belief that infringement exists, even if that belief is unreasonable or self-serving. Electronic Frontier Foundation (EFF) plans to appeal the ruling to the U.S. Court of Appeals for the First Circuit in a case it filed jointly with the law firm Brown Rudnick LLP on behalf of Channel 781 News.
Channel 781 consists of independent volunteer journalists who cover local affairs in the city of Waltham, Massachusetts. The group published short, news-related excerpts from recordings of local government meetings produced by Waltham Community Access Corporation (WCAC), the city’s public-access television station.
In September 2023, WCAC sent YouTube three takedown notices targeting 15 videos from Channel 781’s posts. YouTube removed the clips and then temporarily disabled the entire account under its three-strikes policy, just a few days before a local election. In response, Channel 781 filed a lawsuit under Section 512(f) of the Digital Millennium Copyright Act (DMCA), which permits a claim for damages when a rights holder knowingly makes materially misleading representations in a takedown notice.
The Dispute Centered on Fair Use
Channel 781 argued that WCAC had not conducted a good-faith assessment of fair use before accusing the group of copyright infringement. Fair use permits, under certain circumstances, the use of copyrighted material without permission for purposes such as criticism, commentary, and the creation of new content, and is not itself copyright infringement.
According to the facts presented by EFF, Chris Wangler, the WCAC employee who sent the notices, did not consider several factors relevant to the assessment. Channel 781 used relatively small portions of the recordings, and the original recordings documented public government meetings and facts, rather than works that were equally creative. WCAC also paid little or no attention to whether use of the clips harmed the market for the recordings.
The case also pointed to evidence of motives unrelated directly to copyright. WCAC objected to the use of its recordings to criticize local officials and present political positions. It also sent the notices during a local election period, shortly after Channel 781 published an election statement by the mayor of Waltham that WCAC had inadvertently made available online.
What Did the Court Decide?
Despite these facts, the court concluded that WCAC subjectively and in good faith believed that Channel 781’s clips infringed copyright. The court focused on the fact that Wangler had reviewed information about fair use and watched a short YouTube video explaining the principle, and that he distinguished between videos he believed might qualify for fair use and others he did not believe did.
Under this standard, the court held that Section 512(f) does not require an “ideal or even reasonable” fair-use analysis. The court did not find that Channel 781’s videos themselves infringed copyright; instead, it acknowledged that the group’s fair-use arguments were strong because the clips were short and taken from recordings of public government facts, and because their selection was based on their news value and on facilitating their discovery, sharing, and discussion.
Why Does This Ruling Matter?
EFF says that adopting a purely subjective standard could make it easy for rights holders to remove lawful speech from the internet and then avoid liability simply by claiming that they believed infringement existed. This point has practical significance because multiple notices may not merely remove individual clips but may also lead to the disabling of an entire channel, as happened to Channel 781 before the election.
This is EFF’s reading of the ruling and not a final outcome of the dispute. The court indicated that WCAC’s fair-use analysis “may be flawed,” but it did not believe that its standard allowed it to reject WCAC’s stated belief. EFF’s announced next step is to seek review of the decision before the U.S. Court of Appeals for the First Circuit, meaning that the boundaries of liability for erroneous takedown notices may undergo further judicial review.