The past few months have seen some very interesting cases decided that should have a strong impact on Copyright interpretation going forward.

Last month, a 9th Circuit judge ruled that the Copyright for “Happy Birthday” was invalid, based on evidence showing that the song was published without the proper Copyright notice, which was required at the time for legal protection to attach to the work. Given that the current owner/licensor of the music may have to refund up to $2M in licensing fees if this ruling stands, the case is likely to be appealed to the 9th Circuit Court of Appeals, making this a non-final judgement. In the short term, this is likely not to mean much aside from a plethora of articles on the topic, but in the long-run we may see “non-Birthday” birthday songs by chain restaurants and in films replaced with the real thing. We should see in a few years, if not earlier.

The other major decision came out of the 9th Circuit Court of Appeals, which means it is federally controlling law only for Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. The other Circuits can look to this ruling for support of their own decisions, but it is not controlling law in other states with heavy Copyright ownership, such as New York. Early in September, the 9th Circuit Court of Appeals ruled that Copyright owners who are issuing DMCA takedown notices must consider fair use before sending or issuing their request.

That seems rather opaque, so why are the EFF and other organizations excited? Because until this ruling, fair use only came into play in court. Artists and members of the public could argues the four factors of fair use should excuse their unlicensed use of someone else’s Copyrighted work in court, for the judge to apply. It would not prevent litigation, and only if the factors were weighed to be fair use would there be a “get out of massive fines free” decision on behalf of the non-Owner.

This case purports to shift the burden to the Copyright Owner to establish that fair use was not in play prior to requesting the removal of an unlicensed use of their IP. The case makes the Copyright Owner have to consider whether fair use is in play prior to sending a notice to the webhosting service that they have identified and recognized an unauthorized use of their Copyright, and would the webservice please remove it? Given the vast automation and legions of interns who scour the web for these types of unlicensed uses, it’s unlikely that Copyright Owners will change their behavior until things have been ratified at a higher level, and it’s likely an appeal is already in play. It’s also possible that the 2nd Circuit (home of New York and New Jersey) will produce a contradictory ruling, which will force the Supreme Court to consider the matter, so as to resolve the conflict.

To give some idea of the duration, the “Happy Birthday” case (Rupa Marya, et al. v. Warner/Chappell Music, Inc., et al., Case No CV-13-4460–GHK (MRWx)) took two years to reach last month’s decision, while the appeal from Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150 (2008) took eight years from filing to this non-final ruling. (The appellate court ruled that failure to consider fair use was a triable issue, and that summary judgement was not appropriate.)

