US court ruling upholds ‘fair use’ in YouTube video case

The law “requires copyright-holders to consider fair use before sending a takedown notification”, and those that fail to do so can be held liable for damages, said Judge Richard Tallman in the 3-0 ruling, the first on the issue by any appeals court.

Lenz said the video is fair use and Universal had failed to consider that before ordering the video taken down.

When asked for comment, a spokesman for Universal Music Group deferred to a statement from the Recording Industry Association of America, which said it disagreed with the “burden the court places upon copyright holders before sending takedown notices”. An exception in the copyright law, the fair-use principle allows people to use others’ creative works in criticism, teaching and other limited circumstances.

The woman, Stephanie Lenz, sued Universal Music Corp. and Universal Music Publishing in 2007, after the label sent a takedown notification to YouTube. The assistant had concluded that because “Let’s Go Crazy” was “very much the focus of the video”, a takedown notice should be sent. They called Universal Music’s argument “incorrect” – that fair use was not authorized by the law because it is an affirmative defense that excuses otherwise infringing conduct.

The ruling means that Lenz can continue to seek damages from Universal, though those are likely to be small assuming she actually wins.

Lenz, represented by the San Francisco-based Electronic Frontier Foundation, went ahead with a lawsuit against Universal seeking financial damages and a court order barring Universal from filing future copyright claims against her video. A second decision followed in 2013, which was then appealed to the Ninth Circuit.

That decision led to one of the three judges formally dissenting.

In Smith’s partial dissent, he pours some cold water on the majority’s view that “fair use via algorithms” could be a good route. The EFF argued in the long-running case that UMG’s takedown practices violated the Digital Millennium Copyright Act. In the end it all comes back to making a fair system for all parties involved.

We note, without passing judgment, that the implementation of computer algorithms appears to be a valid and good faith middle ground for processing a plethora of content while still meeting the DMCA’s requirements to somehow consider fair use.

“We will all watch a lot of online video and analysis of presidential candidates in the months to come, and this ruling will help make sure that information remains uncensored”, said its legal director Corynne McSherry.

EFF also praised what it said was the court’s rejection of the claim that “a victim of takedown abuse cannot vindicate her rights if she cannot show actual monetary loss”.

The facts of the case do not reflect the current takedown process.