Copyright Law

Copyright holders must consider fair use before sending takedown notices, 9th Circuit says

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Filmstrip with copyright lock

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It’s been eight years since Stephanie Lenz posted the video of her infant son dancing to Prince’s “Let’s Go Crazy” onto YouTube that started her long-running conflict with Universal Music Corp., the holder of Prince’s copyrights.

According to Reuters, the San Francisco-based 9th U.S. Circuit Court of Appeals on Monday handed Lenz and her pro bono counsel at the Electronic Frontier Federation a partial victory in their eight-year battle with the music company. A split three-judge panel ruled (PDF) that a copyright holder must take fair use into consideration before sending a takedown notice to a website. Universal, which was represented by Munger, Tolles & Olson, had argued that it shouldn’t have to consider fair use because it was available to Lenz as an affirmative defense in a copyright infringement lawsuit.

“Fair use is uniquely situated in copyright law so as to be treated differently than traditional affirmative defenses,” wrote U.S. Circuit Judge Richard Tallman for the majority.

It wasn’t a complete victory for Lenz, though. EFF had argued that Universal should have been found liable for misrepresentation when it sent its takedown notice. The majority, however, disagreed and held that if Universal had a good-faith belief that video did not constitute fair use, then the jury could determine whether or not it was liable.

“We are still reviewing the opinion, but we’re very pleased that the court affirmed that copyright holders must consider whether a use is fair before sending a takedown notice,” said EFF Legal Director Corynne McSherry in a statement. “Today’s ruling sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech.”

Universal declined comment to Reuters.

According to The Hollywood Reporter, many in the entertainment and online world were anxiously awaiting the 9th Circuit’s decision. Motion picture organizations, as well as the music industry, had lined up behind Universal, while Web giants like Google, Twitter and Tumblr had backed Lenz.

The parties will now go to trial over whether or not Universal misrepresented its good faith belief that the video did not constitute fair use. According to The Hollywood Reporter, the trial could be delayed even more than it already has been if either Universal or the EFF decide to appeal the 9th Circuit’s ruling to the U.S. Supreme Court. If so, then Lenz’s son will probably be old enough to watch Purple Rain by the time this case is finally resolved.

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