However, a Federal judge in San Jose gave me a little hope that maybe there might be some sanity in the system. U.S. District Judge Jeremy Fogel, issued an order today that stated that prior to sending a take-down letter, a copyright holder must first determine whether the use of the work constitutes "fair use".
So what does this mean? In 1998, Congress passed the Digital Millenium Copyright Act. The basic purpose of the act was to prevent piracy. The unintended consequence has the assault on fair use. When a copyright holder finds out that their work may be used in an infringing matter on the internet, they have the ability to issue a takedown order. What this means is that anytime a copyright holder notices that someone is using any part of their work, they could send a take down order.
Which is what happened in the case before Judge Fogel.
The case started when Stephanie Lenz made a video of her 13-month old son rocking out to Prince's song "Let's Go Crazy". She put it up on YouTube. Universal Music Corp., which holds the rights to song, issued a take down order. Now, the entirety of the song that was used came to 29 seconds. YouTube, complying with the law, took it down. However, they restored it when Ms. Lenz stood up to Universal and responded and had YouTube restore the video based on the "fair use" doctrine.
However Ms. Lenz, fortunately, was not one to take Universal's action lying down. She took the offensive and filed a lawsuit against the corporation in the U.S. District Court for the Northern District of California. In her suit, she seeks declaratory and injunctive relief (meaning she is seeking a declaration of her rights, not seeking monetary damages).
Universal has taken the position that a copyright holder has no duty to consider whether the use if protected by "fair use". Essentially, any time someone uses any of their "intellectual property", they can initiate proceedings against them without first considering whether the use is legal. Or to put it simply: sue first and let the courts sort it out.
Judge Fogel denied this theory. In his order denying Universal's motion to dismiss, he wrote,
[F]air use is a lawful use of a copyright. 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.As the EFF noted, essentially the court held that copyright holders "ignore fair use at your peril!" The case continues, but the order is a first.
[I]n 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. The DMCA already requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice; indeed, it would be impossible to meet any of the requirements of Section 512(c) without doing so. A consideration of the applicability of the fair use doctrine simply is part of that initial review.
A good faith consideration of whether a particular use is fair use is consistent with the purpose of the statute. Requiring owners to consider fair use will help “ensure that the efficiency of the Internet will continue to improve and that the variety and quality of services on the Internet will expand” without compromising “the movies, music, software and literary works that are the fruit of American creative genius.
Hopefully it won't be the last.