In the Code of Best Practices in Fair Use for Online Video,a team of legal experts and media scholars judged the incidental use of copyrighted material to be an eligible form of Fair Use. It seems that the courts agree. In a recent lawsuit filed by Universal Music against a woman who posted a video of her child running around her house while the Prince song "Let's Go Crazy" played in the background, a federal judge ruled that copyright owners should consider Fair Use before filing any copyright infringement complaints. Below is more from Wired.com:
The 10-page decision (.pdf) came a month after Universal Music told a San Jose, California federal judge that copyright owners need not consider the "Fair Use" doctrine before issuing takedown notices requiring online video-sharing sites to remove content.
The doctrine, recognized by the Digital Millennium Copyright Act, permits limited use of copyright materials without the owner's permission.
"Even if Universal is correct that Fair Use only excuses infringement, the fact remains that Fair Use is a lawful use of a copyright," U.S. District Judge Jeremy Fogel ruled. "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."
Fogel added that 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."
The legal dispute decided Wednesday centers on a rarely used clause in the DMCA -- originally approved by Congress in 1998 -- allowing victims of meritless takedown notices to seek damages, in a bid to deter false notices and breaches of First Amendment speech. It is usually used when somebody issues a takedown notice and misrepresents ownership of the copyright.
This ruling demonstrates the importance of a document like the Code of Best Practices, because both copyright owners and creators of user-generated content need to have a clear understanding of Fair Use as a part of the law. When Fair Use practices are normalized, copyright owners will hesitate before sending out unwarranted cease and desist letters, allowing the world of online video to evolve into an even more democratic medium.