Copyright holders must consider fair use exceptions before sending DMCA takedown notices
A federal appeals court in San Francisco today affirmed that copyright holders must consider whether a use of material is fair before sending a DMCA takedown notice. The ruling came in Lenz v. Universal, often called the "dancing baby" lawsuit. The Electronic Frontier Foundation (EFF) represents Stephanie Lenz, who-back in 2007-posted a 29-second video to YouTube of her children dancing in her kitchen. The Prince song "Let's Go Crazy" was playing on a stereo in the background of the short clip. Universal Music Group sent YouTube a notice under the Digital Millennium Copyright Act (DMCA), claiming that the family video infringed the copyright in Prince's song. EFF sued Universal on Lenz's behalf, arguing that Universal abused the DMCA by improperly targeting a lawful fair use.
Today, the United States Court of Appeals for the Ninth Circuit ruled that copyright holders like Universal must consider fair use before trying to remove content from the Internet. It also rejected Universal's claim that a victim of takedown abuse cannot vindicate her rights if she cannot show actual monetary loss. Universal will now have to face a trial over whether it "knowingly misrepresented" its "good faith belief the video was not authorized by law." The judges have made clear that copyright owners "must consider fair use before sending a takedown notification" before forming that "good faith belief." The fair use consideration doesn't have to be "searching or intensive," Tallman clarified. But it can't be trivial, either.
Today, DMCA notices are automated, and large copyright holders demand that thousands of links be removed at a time. Internet sites like Google remove millions of URLs each year in response to these massive DMCA notices. While today's ruling undoubtedly strengthens EFF's view of fair use, it's unlikely to change much about the millions of takedown notices now being sent each year to Internet intermediaries.
Today, the United States Court of Appeals for the Ninth Circuit ruled that copyright holders like Universal must consider fair use before trying to remove content from the Internet. It also rejected Universal's claim that a victim of takedown abuse cannot vindicate her rights if she cannot show actual monetary loss. Universal will now have to face a trial over whether it "knowingly misrepresented" its "good faith belief the video was not authorized by law." The judges have made clear that copyright owners "must consider fair use before sending a takedown notification" before forming that "good faith belief." The fair use consideration doesn't have to be "searching or intensive," Tallman clarified. But it can't be trivial, either.
Today, DMCA notices are automated, and large copyright holders demand that thousands of links be removed at a time. Internet sites like Google remove millions of URLs each year in response to these massive DMCA notices. While today's ruling undoubtedly strengthens EFF's view of fair use, it's unlikely to change much about the millions of takedown notices now being sent each year to Internet intermediaries.