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August 22, 2008

Court Says Fair Use is a Factor in Sending DMCA Notices

The Fair Use doctrine will get a day in court thanks to a decision by United States District Judge Fogel.  Universal issued a DMCA take-down notice to YouTube over a 29 second video of a baby dancing to a barely audible recording of of Prince's Let's Go Crazy.  After a bit of back and forth, the video was restored, but the mother and videographer, Stephanie Lenz, sued Universal for sending the take-down notice in bad faith.  Universal tried to get the suit thrown out on several grounds, many of which are creative to say the least.

The judge framed the issue as whether copyright holders must take fair use into account when issuing notices.  Universal said no.  In the company's view, fair use is an "excused" infringement rather than an "authorized" use from the copyright owner or by law.  Note the (heavy handed) theme that legal use is characterized as an infringement.  The judge said otherwise pointing to the fair use language in section 107 of Title 17.  "Even if Universal is correct that fair use only excuses infringement, the fact remains that fair use is a lawful use of a copyright."

Universal argued further that by having to evaluate each potential infringement for fair use the company would lose the ability to respond quickly to all suspected infringements, or, in essence, it's too much work.  The Judge rejected these arguments noting that there is guidance in the statute as to what is fair use.  While some situations will be hard to analyze, the majority will not, such as the baby video.

That's not the end of the case, however.  While Lenz may have a moral victory in her case, the judge suspected that she would not be able to prove that the take-down notice was sent in bad faith.  Nonetheless, two important developments come from this opinion.  One is that a court has stated that copyright owners must take fair use into account when sending a take-down notice.  The second is that Lenz and the lawyers at the EFF (who is representing her) get access to all kinds of interesting documents relative to how Universal manages its rights under the DMCA. 

The opinion is at the EFF web site here. [MG]

August 22, 2008 | Permalink

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