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Ruling: Consider Fair Use Before Issuing Takedowns

A fairly significant ruling came down Wednesday in Lenz v. Universal, a rather infamous case where Universal Music Publishing Group issued a takedown against a YouTube video of a young child dancing to a song in the background — a song in which Universal maintained some rights. Universal later acknowledged that this was a fair use of the music, an incidental use, but the Electronic Frontier Foundation (EFF) pursued the aggressive use of Digital Millennium Copyright Act (DMCA) takedowns. The court ruled in the EFF’s favor, and it should have significant outcomes. The EFF writes:

Universal moved to dismiss the case, claiming, among other things, that
it had no obligation to consider whether [Stephanie] Lenz’s use was fair
before sending its notice. The judge firmly rejected
Universal’s theory:

” [A] fair use is a lawful use of a copyright. Accordingly,
in order for a copyright owner to proceed under the DMCA
with “a good faith belief that use of the material in the
manner complained of is not authorized by the copyright
owner, its agent, or the law,” the owner must evaluate
whether the material makes fair use of the copyright.”

Universal had insisted that copyright owners could not
efficiently police copyright infringement if they had to
consider whether a give use was fair. Not so, said the judge:

“[I]n the majority of cases, a consideration of fair use
prior to issuing a takedown notice will not be so complicated
as to jeopardize a copyright owner’s ability to respond
rapidly to potential infringements. The DMCA already requires
copyright owners to make an initial review of the potentially
infringing material prior to sending a takedown notice;
indeed, it would be impossible to meet any of the requirements
of Section 512(c) without doing so. A consideration of the
applicability of the fair use doctrine simply is part of that
initial review.”

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