Fair Use case

Here's a potentially significant ruling in the Copyright Wars: Copyright Owners Must Consider 'Fair Use' Before Sending Takedown Notice

A woman (Lenz) posts a YouTube video of her toddler dancing to a Prince song; Universal orders YouTube to take it down; woman demands it go back up, citing Fair Use, and wants damages from Universal for filing a false takedown notice. Here's the issue at stake: previous claims for filing false notices have been made because the person making the claim did not own the copyright and could not legally make a claim. Lenz is arguing that the takedown notice is false because Universal knows perfectly well that her video falls under Fair Use.

The Digital Millenium Copyright Act (DMCA) states that the complainant must file:

(v) A statement that the complaining party has 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. [emphasis added]

Universal argued that they have no obligation to consider whether Lenz's video might fall under Fair Use; the judge has ruled that, because it's the law, they do have to consider it. I believe that Lenz now has the burden of proving that Universal acted in bad faith, knowing full well that her video was legal. There's plenty of room for Universal to make an effective defense here and they probably will, but it still confirms that the statute means what it says: Universal has to consider whether a use is legal before they start issuing takedown notices.

Here's how Universal tried to argue otherwise:

Universal contends that copyright owners cannot be required to evaluate the question of fair use prior to sending a takedown notice because fair use is merely an excused infringement* of a copyright rather than a use authorized by the copyright owner or by law.

And a reading of the DMCA demonstrates, in no uncertain terms, that this is patent bullshit:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

Let's read that again: "the fair use of a copyrighted work is not an infringement of copyright" (ellipses elided). The copyright warriors really want this not to be the case, but it is. Now, Lenz still has to demonstrate that Universal acted in bad faith, knowing full well that her use was actually legal (and while her use is noncommercial and does no harm to the market value of the original, it's still hard to fit into any of the enumerated categories). But it's helpful to see Fair Use reaffirmed as The Law, not just a funky exception to the law.

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*And what the hell kind of legal principle is an "excused infringement," anyway? Isn't that rather like a statute declaring a crime to be okay, but still a crime? Can such a thing even exist in law?