Court Says Music Companies Must Consider Fair Use Before Issuing YouTube Takedown Notices

A federal appeals court in San Francisco today made it harder for music companies to issue takedown notices for homemade YouTube videos that use brief scraps of their copyrighted music.

A three-judge panel of the 9th U.S. Circuit Court of Appeals said copyright owners must first consider whether the video excerpt was so-called “fair use” of their material.

The decision was made in a lawsuit known as the “dancing baby case,” filed against Universal Music Corp. in federal court in San Francisco in 2007 by a Pennsylvania mother, Stephanie Lenz.

Lenz had posted a 29-second video of her 13-month-old son, Holden, dancing to the sound of Prince’s “Let’s Go Crazy” as he pushed a rolling walker around her kitchen in February 2007.

YouTube removed the video in June after receiving a takedown notice from Universal claiming copyright. After Lenz objected that she wasn’t infringing a copyright, YouTube restored the clip six weeks later.

Lenz, represented by the San Francisco-based Electronic Frontier Foundation, went ahead with a lawsuit against Universal seeking financial damages and a court order barring Universal from filing future copyright claims against her video.

The lawsuit was filed in San Francisco because San Bruno-based YouTube and its owner, Mountain View-based Google, are located in the Northern California federal court district.

Lenz claimed her video was protected by the doctrine of fair use, which was incorporated by Congress into a 1976 law and which allows limited use of copyrighted material for purposes such as reporting, social commentary and artistic expression.

In today’s decision, a three-judge panel upheld a trial court ruling allowing the lawsuit to go to trial.

The panel said that companies must consider fair use before issuing a takedown notice and that Lenz could sue on her claim that Universal failed to do so.

“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,” Circuit Judge Richard Tallman wrote.

The court also said Lenz could seek nominal financial damages for losses that would be determined at the trial, such as possibly her expenses in pursuing the case.

The panel said Universal could seek to defend itself at trial by arguing it had a good-faith subjective belief that the video was not fair use of the copyrighted material.

A Universal spokeswoman was not available for comment.

EFF Legal Director Corynne McSherry said in a statement, “Today’s ruling sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech.”

McSherry added, “The decision made by the appeals court today has ramifications far beyond Ms. Lenz’s rights to share her video with family and friends. We will all watch a lot of online video and analysis of presidential candidates in the months to come, and this ruling will help make sure that information remains uncensored.”

Julia Cheever, Bay City News

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