Prince and Universal music have been battling with Lenz for years. On Monday, the 9th Circuit Court of Appeals made this clear in a long-awaited opinion in a dispute concerning a 29-second video clip of a toddler dancing to the 1984 Prince hit “Let’s Go insane”. Universal Music Group – responsible for enforcing the copyright on Prince’s catalog – asked YouTube to remove the video.
Advertisement
Google eventually agreed, and restored the video.
The 9th Circuit said Lenz failed to overcome this hurdle, and instead may seek nominal damages for the “unquantifiable harm ” she suffered.
An entertainment lawyer interviewed by the LA Times said he expects cases of clear-cut piracy to be unaffected by the ruling. The law sets out a four-part test for judges to apply, but the test is subjective.
We note, without passing judgment, that the implementation of computer algorithms appears to be a valid and good faith middle ground for processing a plethora of content while still meeting the DMCA’s requirements to somehow consider fair use.
“Fair use is not just excused by the law, it is wholly authorized by the law”.
According to the panel, this ruling marks the first time a circuit court has spoken on the issue. “Universal knew it had not considered fair use, and therefore knew it lacked a basis to conclude that the video was infringing”. Otherwise, they can be liable for damages.
The case is symbolic because it questions the abuse (or lack thereof) of copyright holders. The majority, however, disagreed and held that if Universal had a good-faith belief that video did not constitute fair use, then the jury could determine whether or not it was liable. The EFF argued in the long-running case that UMG’s takedown practices violated the Digital Millennium Copyright Act.
Following the ruling, EFF Legal Director Corynne McSherry issued the following statement.
All of this assumes that anyone will be able to actually enforce it, and it assumes that videos of games are going to be taken seriously by a court. “This means that rights holders sending notices need to actually ensure their takedown notices are not directed at fair uses, and that they face real legal consequences if they are”.
Advertisement
The term “fair use” was not included in the criteria developed for takedown notices, nor was it mentioned in its argument against Lenz when she twice appealed for the video to go back up. Nevertheless, the fair use doctrine is crucial to preserving the public’s free speech rights, whether it be campaign commercials or short clips of babies dancing for their families.
