Last year, Stephanie Lenz uploaded a video of her toddler dancing and jiggling about, with a Prince song playing in the background. The clip was only 29-seconds long, and the music was barely audible.
Court Case Followed
Lenz refused to just take this issue lying down, and managed to get Universal to retract the takedown notice after claiming the use of the song was fair use, and not at all detrimental to the artist’s rights.
Not content with this, she then got in touch with the EFF (Electronic Frontier Foundation) and took Universal to court for issuing the notice in the first place.
Foibles Of Fair Use Law
Some saw this as an unnecessary step, totally over the top, while others thought it was a brilliant stand against a corporation overstepping its copyright-maintaining powers.
The two sides have been facing each other in court in front of Judge Jeremy Fogel where the issues and foibles of the current fair use laws have been being debated.
Universal followed the rules in identifying copyrighted material, and then issuing a takedown notice with the onus on the uploader to prove otherwise, but the DMCA also tried to discourage false claims of copyright infringement by asking the holders to take into account the fair use rules.
In which case, the bigger issue in this case seems to be whether Universal followed those guidelines, or whether it sent a takedown notice knowing in advance that the video in question was highly likely to be deemed fair use. Which would be misuse of the DMCA.
Fair Use First
According to Ars Technica, Universal Music claims that it is not reasonable for the copyright holder to take fair use into consideration before sending a takedown notice, and it looks as though the judge agrees.
The music label’s lawyer stated:
“Plaintiff’s exclusive reliance on the affirmative defense of fair use necessarily establishes that Universal’s statement that her use was infringing was true,”
“For there to be a ‘fair use,’ there first must be an infringing use. Plaintiff’s arguments that her use could be a ‘fair use’ without infringing, or that Universal must be deemed to have impliedly represented that her use was not ‘fair,’ are contrary to the Copyright Act and controlling case law.”
While Universal’s might be legally correct, it does show a heavy-handed approach to the idea of fair use, and takedown notices – not to mention the awful complex state of copyright law. This video was clearly fair use, and even the toddler himself would have been able to determine that before any takedown notice was dispatched.
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