by Shana Dines
As many YouTube enthusiasts know, takedown notices have become a standard operating procedure for many creative, young internet-video clip-makers. The most common and successful defense to these notices is a claim of fair use.
Recent litigation initiated by the Electronic Frontier Foundation, in support of Stephanie Lenz, has caused the courts to push back on the recording industry's aggressive tactics of what the EFF calls bad faith takedowns.
The video in question is Ms. Lenz's 29-second clip of her 18-month old son dancing with Prince's "Let's Go Crazy" playing in the background, which the EFF called "self-evident non-infringing fair use."
The US District Judge who heard the case insisted that the copyright owner must consider the fair use doctrine as part of its initial review, before sending out takedown notices.
As part of the Digital Millennium Copyright Act (DMCA), copyright owners are required to send takedown notices to suspected online copyright infringers before initiating legal action. If an online service provider (OSP), like YouTube, receives such a notice, it must remove the content and inform the party who posted it of the notice. Alleged infringers can then respond with counter-notices stating that they believe the use is not an infringement, after which the OSP can re-post the video.
After this procedure, if the copyright owner still feels its property is being infringed, it can file suit against the alleged infringer.
In the alternative, an alleged infringer who happens to live in San Francisco, the West Coast headquarters of the EFF, can enlist one of the most notoriously anti-recording industry public interest groups to turn their minor infringement into a major media display.
Universal Music Group, the owner of Prince's copyrights and the defendant in Ms. Lenz's case, moved to dismiss the lawsuit, arguing that there is no such thing as a "self-evident" fair use. Fair use is a fact-specific doctrine that requires careful consideration and balancing of numerous factors.
One of the factors of fair use that Universal argued was that the video could potentially undermine the market for licenses to make similar videos, meaning that if this low-quality home video of a toddler dancing in a kitchen is considered fair use, than musical performers may believe they could also use the song without permission or liability. This argument clearly does not pass the laugh test.
This decision did not end this case, but rather breathed new life into it. By refusing to dismiss the lawsuit, the EFF and Ms. Lenz now have time to obtain documents and interview witnesses to build their claim that Universal's takedown notice was done in bad faith.
While the success of the bad faith claim is uncertain, the San Francisco Judge's opinion took a small step towards enforcing greater accountability in recording industry takedown notices on YouTube and other OSPs.