Judge: Copyright Owners Must Weigh "Fair Use" in Complaints

Authored by Mark Hefflinger on August 21, 2008 - 9:45am.

Los Angeles - A federal judge ruled on Wednesday that copyright holders must consider the potential "fair use" of their works before sending copyright takedown notices to online video sites. "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," U.S. District Judge Jeremy Fogel wrote, in his ruling.

The case in question involved a 30-second video of a baby dancing along to a song by the artist Prince, which was posted to YouTube (NASD: GOOG), but later removed after Universal Music Group contacted the company and requested it be taken down, per the Digital Millennium Copyright Act (DMCA).

Stephanie Lenz, the baby's mother, later demanded the video be reposted -- which it was -- under another provision of the same law that protects "fair use" of copyrights.

Lenz is now able to pursue damages from Universal, but Judge Fogel expressed doubt that Lenz would be able to prove that Universal acted in subjective bad faith when it sent the takedown notice.

"Given the 'shoot first and ask questions later' approach some content owners take to the DMCA notice process, improper takedowns of non-infringing fair uses are all too common," said Corynne McSherry, an attorney for the Electronic Frontier Foundation, which is representing Lenz.

"We're very pleased that Judge Fogel has put content owners on notice."