Now three judges on the 9th circuit say that unless Universal evaluated whether it was fair use, it may have violated the rights of the video maker.
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Recording companies, motion picture studios and other copyright owners issue numerous takedown notices each day, targeting everything from home videos to campaign ads that include segments of songs or newscasts.
In doing so, it explicitly rejected the claim made by Universal Music Group that “fair use” was something others would need to use to argue against a takedown notice.
The ruling also sends a message to tech companies that host uploaded content. Since 2006, Google has relied on its “Content ID” system for rights holders to flag DMCA takedown requests. In 2007 she posted a 29-second video on YouTube of her kids dancing to “Let’s go crazy”.
The case is an important one for the entertainment and publishing industries, especially with the advent of the Internet and social media, where people routinely appropriate background music for their videos, adding their own little touches along the way.
THE LOS ANGELES TIMES reports, “LENZ was in her kitchen in rural PENNSYLVANIA, filming her two young children having fun after dinner”.
The dispute itself has become so lengthy that Lenz’s “toddler” is now about 10 years old. The case has been dragging through the law courts ever since.
The Electronic Frontier Foundation, which represented Lenz, suggests that the ruling could affect political candidates’ online ads – which sometimes incorporate copyrighted material like clips from TV news broadcasts.
“We are still reviewing the opinion, but we’re very pleased that the court affirmed that copyright holders must consider whether a use is fair before sending a takedown notice”, said EFF Legal Director Corynne McSherry in a statement. Copyrighted work can generally be used without infringing if it is being used for criticism, comment, reporting, teaching or research.
“Something’s likely to be fair use when there’s no way it’s going to be a market substitute for the original”.
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Here’s the full decision from the Ninth Circuit. The DCMA requires that rights-holders first consider fair use before ordering takedowns, but the process tends to be more automated, especially for the major labels. Universal’s view that fair use is essentially an excuse to be brought up after the fact is wrong, they held. Companies that fail to do so could be on the hook for damages, the court ruled.
