Someone -- a Mom! -- stood up to a takedown notice and won, setting a great precedent; while watching the video I couldn't help but think (again) how unscrupulous the likes of Universal Music and their lawyers are -- especially the lawyers, who keep collecting the big bucks in exchange for really bad advice / bogus copyright claims. They should have counseled Universal against sending a takedown notice for something like this, right? Haa!
Universal Music was wrong about YouTube dancing baby
by Davey Winder
Friday, 22 August 2008
A US federal judge has ruled that fair use rules do apply to YouTube video clips and must be taken into account before issuing takedown notices under the Digital Millennium Copyright Act. Which means the dancing baby can keep going crazy to Prince after all...
Last year Stephanie Lenz posted a short, 29 second, video clip to YouTube. It showed her then 18 month old baby dancing to a now 24 year old Prince song.
The video was vaguely amusing, but not everyone was laughing. Universal Music issued YouTube with a takedown notice for copyright violation.
If that was not pushing the spirit of the law a little, then the fact that the song was actually being played in the background, on the television, during the Super Bowl certainly bent it double. What's more, you could hardly hear the garbled soundtrack.
YouTube then compounded this over the top reaction by informing the mother that any further infringements would see her account cancelled.
Understandably, Stephanie Lenz was less than impressed by this snapping dog approach to copyright law, and decided to do something about it.
What she did was bring a lawsuit which asserted that the video was covered by a 'fair use' clause and should be reinstated. In fact, Universal did not challenge that assertion and the video went back up online after six weeks.
However, Universal Music did go on to insist that copyright owners should not need to consider fair use issues before throwing takedown notices for online video content to be removed. Now a federal judge has finally made the ruling which in effect takes down the Universal claim.
Judge Jeremy Fogel ruled that even if Universal was correct in suggesting that fair use only excuses infringement "the fact remains that fair use is a lawful use of a copyright."
The DMCA has a clause which allows for those who have been on the wrong end of a bad takedown notice to seek damages. Importantly, the judge ruled that if a copyright owner is accused of acting in bad faith by issuing a notice without proper consideration of fair use is "sufficient to state a misrepresentation claim."
Universal seemed content to argue that it would, as a copyright owner, not be able to act rapidly enough against potential infringements if it had to evaluate fair use before issuing a takedown notice.
Which rather stinks of shooting first and asking questions later, it seems to me.
Luckily, Judge Fogel is that rare breed: a judge who seems to understand modern technology. He denied the motion from Universal to dismiss the damages claim from Stephanie Lenz.