LET’S NOT GO CRAZY

babyThe cherubic little fellow pictured on the right is at the center of a closely-watched case involving the “takedown” provisions of the Digital Millennium Copyright Act of 1998 (“DMCA”). His mom, Stephanie Lenz, posted a 30-second YouTube video of the tike “dancing” to Prince’s “Let’s Go Crazy,” which can be heard playing in the background. Universal Music, Prince’s publisher, notified YouTube that it had a “good faith belief that the above-described activity is not authorized by the copyright owner, its agent, or the law” (magic language required by the DMCA) and demanded that the video be removed.  (Fisher-Price, apparently, had no objection to the product placement.)

Ms. Lenz did not take the matter lying down. Although the DMCA takedown provision is designed to protect  third-party internet content services like YouTube from liability for hosting infringing content, it also gives the users of the service who post material subject to a takedown notice certain rights, including the right to demand reinstatement and a cause of action for damages against the copyright owner for “knowingly materially misrepresenting . . . that material or activity is infringing.” Ms. Lenz demanded that the video be “put back” and sued Universal for damages on the ground that it had not, before demanding takedown, considered whether the video was protected under the doctrine of fair use.

Last week, in Lenz v. Universal Music, the Ninth Circuit handed Lenz an important—albeit provisional—victory, holding that a copyright owner is indeed required under the “good faith belief” standard to consider fair use before making a takedown demand.

(more…)

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