Fair Play? Judge Rules “Fair Use” Must be Considered Before Takedown Notices are Sent

By Michael Santo
Editor-in-Chief, RealTechNews

This is a major win for those of us who feel that sometimes organizations such as the MPAA, RIAA or others go overboard in their use of takedown notices. You may remember the so-called “dancing baby” issue, in which a 29-second clip of a baby dancing was ordered taken down by Universal Music Corporation. Why? Because of music in the background: Prince’s “Let’s Go Crazy.”

It would seem obvious that this was “fair use,” and that the takedown notice was overkill (and improper). Stephanie Lenz of Gallitzin, PA, realizing what UMC did not, sued them over misrepresentation under the DMCA. UMC naturally moved to dismiss the case, saying, among other things, that it had no obligation to consider whether Lenz’s use was fair before sending its notice.

Judge Jeremy Fogel, using common sense along with the law, didn’t fall for this argument.

In his ruling on Wednesday (.PDF) he said:

Though Congress did not expressly mention the fair use doctrine in the DMCA, the Copyright Act provides explicitly that “the fair use of a copyrighted work . . . is not an infringement of copyright.” Even if Universal is correct that fair use only excuses infringement, the fact remains that 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.

Fogel also dismissed Universal’s contention that copyright holders couldn’t efficiently perform their overkill, er, copyright infringement police work if they had to take the time to check for “fair use” before ordering the takedown.

Undoubtedly, some evaluations of fair use will be more complicated than others. But in 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.

Like he said, “not so complicated,” or as in this case, overly simple.

The clip (below) was put back up on YouTube after about a month. While it’s clear that allowing the case to continue already sets a major precedent, Fogel said he doubted Lenz could win the overall case.

Although the Court has considerable doubt that Lenz will be able to prove that Universal acted with the subjective bad faith required by Rossi, and following discovery her claims well may be appropriate for summary judgment, Lenz’s allegations are sufficient at the pleading stage.