Judge: Copyright owners must consider 'fair use'

A federal judge on Wednesday gave more weight to the concept of "fair use" when he threw a lifeline to a Pennsylvania mother's lawsuit against Universal Music.

The judge refused to dismiss Stephanie Lenz's suit claiming that Universal abused the Digital Millennium Copyright Act when it issued a takedown notice to YouTube over a 30-second video of Lenz's baby dancing to a Prince song.

In the first ruling (PDF) of its kind, Judge Jeremy Fogel held that copyright owners must consider fair use before sending DMCA takedown notices.

"Fair use is a lawful use of a copyright," the judge wrote. "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."

Lenz first filed suit in October 2007, after Universal requested that her video be taken down, and YouTube kept it off its site for more than a month. Lenz argues that the Prince song is barely audible in the short clip and clearly represents fair use, which allows for limited use of copyrighted materials without permission. In order to protect First Amendment rights, the DMCA allows for targets of illegitimate takedown notices to seek damages against the copyright holder.

The suit was initially thrown out of the federal court in April of this year, but the Electronic Frontier Foundation, which is representing Lenz, filed a second complaint just 10 days later.

Corynne McSherry, an attorney for EFF, called the ruling "a major victory for free speech and fair use on the Internet" that will "help protect everyone who creates content for the Web."

Although Fogel refused to throw out the case a second time, he expressed doubt that Lenz would win. "The Court has considerable doubt that Lenz will be able to prove that Universal acted with the subjective bad faith," he wrote.

[The_Decider]

Finally, a DMCA ruling that considers the rights of the people.

It is a travesty that corporations have so perverted the intent and spirit of IP laws. Copyright and patents are no longer working as intended.

[sanenazok]

She gets to continue the case only to lose it later. I guess this is good since EFF is paying her legal bills. Since the DMCA requires explicit bad faith she'll never get past summary judgment.

[fokkwp]

"the owner must evaluate whether the material makes fair use of the copyright."

That means they add a paragraph of boilerplate to their cease-and-desist notices saying "Our evaluation indicates that your use of our material does not constitute fair use . . .". That's all.

[renGek]

It will never get that far because universal won't want the bad publicity and give other people the idea of suing them. They'll settle out of court with her. Then universal will take it out on the consumers by hiking the price of their goods. Then the consumers will take it out on universal by downloading more stuff. Yay for the little guys. At least we have some ammo against the corporate giants for a change.

[Thomas, David]

The DMCA filed such a bogus, stupid lawsuit. I hope they a screwed out of existence over this.

[cohaver]

Fair use If She loses one problem we all face is if Pepsi or coke go after you for drinking a soda in a youtube video they don't like. Or someone sings the lyrics to a song in the back ground. copyrights should only go after people that seek profit from it. Maybe cops can charge you for copyright infringement next time you play your radio to loud. Or next time you lend your movie or music DVD or CD to a friend. Greed or common since . So Fair use Fair Use.
Common Since the Wisdom of Salomon is needed in Courts .

[TV James]

Universal should have demanded that Lenz put a copyright at the end. Then anyone who liked the song could go and find it on Amazon or iTunes. Although they're sure getting a lot of publicity this way, too.

[OlderThanOld]

All this litigation over _that_? It's a baby bouncing up and down to a song that is almost unrecognizable. _This_ prompted a DMCA takedown notice?

Of all the legacies of the Clinton years, the DMCA and the V-chip are the stupidest. It's no wonder the National Lampoon disappeared--we're living in one of their extended satires _now_!

[Dr_Zinj]

So, all those home videos that have any music on them are now in copyright violation?