Ruling: Content Owners Must Consider Fair Use Before Sending Takedown Notice

Bob Preston
SACRAMENTO — A U.S. district court judge ruled this week that content owners must properly consider fair use needs before telling someone to take down a video or article that uses their content.

The ruling, handed down by Judge Jeremy Fogel, specifically touches on the Digital Millennium Copyright Act, or DCMA. Universal's music division had told the maker of a home movie to take down a 29-second video of their baby dancing while Prince's song "Let's Go Crazy" played in the background.

The home-movie maker, Stephanie Lenz, sued Universal on the grounds that the company had misrepresented itself under the DCMA. Universal moved to get the case dismissed on the grounds that they didn't even need to consider fair use needs before sending a notice to take down content.

Judge Foel disagreed.

"[A] fair use is a lawful use of a copyright," he wrote. "Accordingly, in order for a copyright owner to proceed under the DMCA with 'a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,' the owner must evaluate whether the material makes fair use of the copyright."

Universal argued that if content and copyright owners had to consider fair use needs every time they considered sending a takedown notice, they wouldn't be able to properly guard their copyrights.

Again, Fogel disagreed.

"In the majority of cases, a consideration of fair use prior to issuing a takedown notice will not be so complicated as to jeopardize a copyright owner’s ability to respond rapidly to potential infringements," he wrote. "The DMCA already requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice."

Free Speech Coalition Chairman Jeffrey Douglas told XBIZ that although this ruling includes a refreshingly nuanced look at fair use and copyright issues, it probably won't affect the adult industry much.

"It may be that the fair use of copyrighted music and copyrighted digital images will split," he said. "Cases that look at examples of digital images supported by music will focus on the image."

Douglas explained that even though different modes of legal analysis may be required in these cases, he can't imagine a scenario where fair use could be invoked to protect someone who just puts up an unaltered version of a copyrighted video.

"Because of that, I see this ruling having little impact on adult," he said.

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