A victory for fair use?


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A federal judge in San Jose handed a victory to fair-use advocates today, refusing to dismiss a lawsuit that a Pennsylvania woman filed after Universal Music Publishing forced YouTube to remove a video of her children cavorting to an old Prince hit. But it may prove Pyrrhic, as the judge expressed doubt that the woman would ultimately be able to prove her case.

The legal skirmish centers on a 29-second video that Stephanie Lenz posted to YouTube last year that features her then-13-month-old son racing around the kitchen. The video includes a decidedly low-fi recording of Prince’s ‘Let’s Go Crazy.’ At Universal’s request, YouTube removed the video and kept it off for more than a month, prompting Lenz to sue. Lawyers from the Electronic Frontier Foundation, which represents Lenz, argued that Universal violated the notice and takedown provision of the Digital Millennium Copyright Act, which says copyright holders can demand the removal of their works from the Web if they have ‘a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.’ Because the video was a fair use of Prince’s work, the EFF contended, Universal violated the DMCA.


Universal countered by arguing that no copyright holder should have to consider fair use before sending out takedown notices. Fair use is a defense available to those who infringe, not a right, the publisher claimed. Judge Jeremy Fogel disagreed. Here’s his reasoning:

Even if Universal is correct that fair use only excuses infringement, the fact remains that fair use is a lawful use of a copyright. Accordingly, in order for a copyright owner to proceed under the DMCA with “a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law,” the owner must evaluate whether the material makes fair use of the copyright. 17 U.S.C. § 512(c)(3)(A)(v). An allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim pursuant to Section 512(f) of the DMCA.

The ruling would seem to bar copyright holders from using bots to find and demand the removal of any and all uses of their works online, including those in news reports, reviews, parodies and other fair uses. (For an example of a bot at work, see David Sarno’s piece today on YouTube’s new automatic content-identification system.) But even if Fogel’s decision goes unchallenged, the prohibition may be difficult to enforce. That’s because, as Fogel noted, proving the kind of misrepresentation claim that Lenz is pursuing requires a plaintiff to show the copyright holder knew it was making a groundless claim of infringement (i.e., it was acting in ‘subjective bad faith’). It’s not what Universal should have known about the video, but what it actually knew. And because fair use is determined on a case-by-case basis, it’s almost impossible to know in advance whether something qualifies unless it’s already been subject to litigation. As Fogel put it, Lenz may have won the battle, but she’ll probably lose the war:

Although the Court has considerable doubt that Lenz will be able to prove that Universal acted with the subjective bad faith required by Rossi, and following discovery her claims well may be appropriate for summary judgment, Lenz’s allegations are sufficient at the pleading stage.

The Times’ editorial board weighed in on this one last month, urging the courts to protect fair uses against automated and knee-jerk takedown notices. But it also counseled Universal and Prince to make their peace with the Lenzes of the world, on the principle that it’s better to monetize fans’ videos than to fight them in court.

-- Jon Healey

Healey writes editorials for the Times’ Opinion Manufacturing Division.