Judge Rules That Content Owners Must Consider Fair Use Before Sending
Takedowns.
by Corynne McSherry
A judge's ruling today is a major victory for free speech and fair use
on the Internet, and will help protect everyone who creates content for
the Web. In Lenz v. Universal (aka the "dancing baby" case), Judge
Jeremy Fogel held that content owners must consider fair use before
sending takedown notices under the Digital Millennium Copyright Act
("DMCA").
Universal Music Corporation ("Universal") had sent a takedown notice
targeting a 29-second home movie of a toddler dancing in a kitchen to a
Prince song, "Let's Go Crazy," which is heard playing in the background.
Because her use of the song was obviously a fair use and, therefore,
non-infringing, Lenz sued Universal for misrepresentation under the
DMCA. Universal moved to dismiss the case, claiming, among other things,
that it had no obligation to consider whether 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.
more...
http://tiny.cc/hGEe4
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