Online Takedowns: Consider Fair Use, says Court

A seven-year-old court case brought by an angry mom may make overzealous copyright holders think twice about Internet takedowns.

In denying requests for a summary judgment and allowing the case to proceed, an appeals court clearly asserted [2] that “copyright holders cannot shirk their duty to consider—in good faith and prior to sending a takedown notification—whether allegedly infringing material constitutes fair use.” If they don’t consider fair use, and not just by paying “lip service” to it, they can be sued.

The story so far.

In 2007, graduate student Stephanie Lenz took a 29 second video of her toddler dancing to the Prince song Let’s Go Crazy, and uploaded it to a new service, YouTube. Before her relatives could enjoy it, though, it was taken down because Universal, administrator of the copyright, had issued a takedown request. And then Universal challenged her counter-takedown. So Lenz and the lawyers from the Electronic Frontier Foundation [3] took Universal to court, for acting in bad faith.

Under the Digital Millennium Copyright Act, YouTube had to comply with any takedown request made in good faith. But what if Universal hadn’t considered fair use? Would it still be good faith?

Consider fair use.

Over the years, Universal has tried to dodge and weave on this issue. Among other things, its lawyers said that since fair use was only a defense (the only time you actively invoke it is when you are challenged, much like what happens when you invoke the right of self-defense), they didn’t need to consider it when they considered infringement. The court made mincemeat of this argument, pointing to clear language in the law showing it to be a right, reinforcing the point with quotes from judicial decisions. 

The Court also affirmed that Lenz has the right to ask for damages beyond monetary loss, for her suffering in the process.

This decision makes it harder to justify sending bots to comb the web for matching digital patterns that trigger takedowns. And it makes it important for lawyers as well as YouTube uploaders to know the right of fair use.