The US Court of Appeals for the 9th Circuit today issued a ruling that could change the contours of fair use and copyright takedown notices. In an opinion (PDF) published this morning, the three-judge panel found that Universal Music Group’s view of fair use is flawed. The record label must face a trial over whether it wrongfully sent a copyright takedown notice over a 2007 YouTube video of a toddler dancing to a Prince song. That toddler’s mother, Stephanie Lenz, acquired pro bono counsel from the Electronic Frontier Foundation. The EFF in turn sued Universal in 2007, saying that its takedown practices violated the Digital Millennium Copyright Act. Further Reading The judges ruled today that copyright holders “must consider the existence of fair use before sending a takedown notification.” Universal’s view that fair use is essentially an excuse to be brought up after the fact is wrong, they held. UMG’s view of fair use solely as an “affirmative defense” is a misnomer. “Fair use is uniquely situated in copyright law so as to be treated differently than traditional affirmative defenses,” wtore US Circuit Judge Richard Tallman for the majority. The long-running copyright case began when Lenz uploaded a video of her son Holden dancing to Prince’s “Let’s Go Crazy.” At that time, Universal had an employee scouring YouTube each day in order to issue takedowns on videos that used Prince music. EFF, looking for a test case over bad DMCA takedowns, found a sympathetic client in Lenz, a mom seeking to simply share a video of her son with his grandmother. Today’s ruling isn’t an all-out win for EFF, which wanted Universal to be held liable immediately under 512(f), the section of the DMCA that allows for damages over bad-faith takedown notices. Universal will have to face a trial over whether it “knowingly misrepresented” its “good faith belief the video was not authorized by law.” But the judges have made clear that copyright owners “must consider fair use before sending a takedown notification,” before forming that “good faith belief.” To be successful at trial, Universal doesn’t have to prove that the video wasn’t fair use. It just has to show that it considered fair use before sending the notice. Otherwise, it could be liable for “nominal” damages to Lenz—which wouldn’t be much, since her video went back up after a short period, and has been up since then.
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