In the so-called “dancing baby” case, the Ninth Circuit ruled recently that copyright owners must consider the fair use doctrine before sending Digital Millennium Copyright Act (“DMCA”) takedown notifications to online service providers, such as YouTube. If copyright owners fail to do so, they risk incurring penalties under DMCA section 512(f).
In 2007, Universal Music Group sent a takedown notification to YouTube requesting removal of plaintiff Stephanie Lenz’s 30-second clip of her son dancing to Prince’s “Let’s Go Crazy.” After YouTube removed the video from its site, Lenz filed a counter-notice, and YouTube reinstated the video. Though Universal did not pursue the matter further, Lenz, working with the Electronic Frontier Foundation (“EFF”), then sued Universal, alleging Universal’s takedown notification violated section 512(f) of the DMCA because her video was subject to the fair use protections of the Copyright Act (17 U.S.C. § 107). In 2013, U.S. District Judge Jeremy Fogel denied both parties’ motions for summary judgment, ordered a trial, and both sides appealed.
Continue Reading Ninth Circuit Holds Fair Use Must Be Considered Prior to Issuing Takedown
On July 7, a Ninth Circuit panel heard oral argument regarding whether copyright owners abuse the Digital Millennium Copyright Act (“DMCA”) when they utilize the statute’s Notice and Takedown procedures to request the Takedown of material that constitutes a “fair use” of copyrighted material.