Earlier this week, a judgment was finally reached in the long-running dispute between Stephanie Lenz and Universal Music Group (Lenz v. Universal [PDF]) known as the "dancing baby" lawsuit. The decision represents a very important ruling protecting the concept of "fair use" and helps to eliminate a means of censorship on the internet.
In 2007, Stephanie Lenz posted a home video to YouTube of her 13-month-old child dancing. Prince's song "Let's Go Crazy" played in the background of the 29-second clip. YouTube received a takedown notice from Universal under the Digital Millennium Copyright Act (DMCA) on the basis that the music in the video infringed on Universal's copyrights. The video was immediately removed. Lenz asked for the video to be reinstated under the DMCA's "put-back" process, but Universal refused. The Electronic Frontier Foundation (EFF) then came to Lenz's defense, suing Universal for abusing the DMCA by censoring a clip that actually constituted fair use.
“Today’s ruling sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech. We’re pleased that the court recognized that ignoring fair use rights makes content holders liable for damages.”
In the ruling, the United States Court of Appeals for the Ninth Circuit held that copyright owners must consider fair use in their decisions to issue takedown notices under the DMCA. It also held that recipients of such bogus takedown notices do not give up their rights to seek damages, even if they suffered no monetary consequences.
While the DMCA notice-and-removal process offers an opportunity for review of what may be a bogus infringement claim, it nonetheless can be used as a way to censor free speech or inhibit fair use. Because the review process takes place after the removal, the damage has already been done; lawful content can be removed or speech censored before it can be determined otherwise. As a result, the process can be abused, with the entity issuing the takedown notice hoping that they will not receive a request for reinstatement, or knowing that reinstatement will not come until long after free speech has been stifled.
Increasingly, content companies have been using computer algorithms to find potentially infringing material and automatically issue takedown notices. In practice then, fair use is not being taken into consideration and innocent people can become the victims of takedown abuse. While in this case, the use was not discovered by a computer, the court still found that no consideration was made as to whether the clip constituted fair use.
The court has ruled that copyright owners must take fair use into account prior to issuing a takedown notice or be held liable for damages. This should eliminate bogus automatic takedowns and other examples of abuse. The ruling is a clear victory for fair use and for keeping the internet free of censorship.