NUL Copyright
This blog is to share information and insight on copyright law, trends and practices and how they may affect the Northwestern University community.
August 2008 Archives
August 21, 2008
A win for fair use
Yesterday (8/20/2008), Judge Jeremy Fogel of the Northern District of California denied Universal Music Corp.'s motion to dismiss a lawsuit brought against them by a mother who objected to the removal of her video from YouTube. Stephanie Lenz had videotaped her son dancing to Prince's song "Let's Go Crazy," and the video contained about 20 seconds of the music in the background. Universal filed a Digital Millennium Copyright Act (DMCA) takedown notice, and YouTube removed the video, but later reinstated it when Lenz filed a counternotice. She later also filed suit against Universal.
The judge's order reads in part: "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." (Lenz v Universal, case # C 07-3783 JF, U.S. District Court, N.D. California, Order Denying Motion to Dismiss, p 6.)
One view of fair use defines it as an "affirmative defense," that is, it acknowledges that the use is an infringement of copyright, but defends the infringement on certain grounds. As the judge notes in his order, however, this theory has never been tested in court, and the actual language of the U.S. Copyright law states that "the fair use of a copyrighted work . . . is not an infringement of copyright.” (Title 17, U.S. Code, section 107)
The key question is: is fair use an authorized use, or merely an excused use?
The judge finds it an authorized use, and agrees with the plaintiff: "As Lenz points out, the unnecessary removal of non-infringing material causes significant injury to the public where time-sensitive or controversial subjects are involved and the counter-notification remedy does not sufficiently address these harms. A good faith consideration of whether a particular use is fair use is consistent with the purpose of the statute." (Lenz v Universal, Order Denying Motion to Dismiss, p.7)
Analysis and a link to the opinion from Georgia Harper at Collectanea: More (and more) good news for fair use
