Ruling: Consider Fair Use Before Issuing Takedowns

Peter Brantley
August 22, 2008 | Permalink | Comments (0) | Listen

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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