Judge: Copyright owners must consider 'fair use'

A federal judge on Wednesday gave more weight to the concept of "fair use" when he threw a lifeline to a Pennsylvania mother's lawsuit against Universal Music.

The judge refused to dismiss Stephanie Lenz's suit claiming that Universal abused the Digital Millennium Copyright Act when it issued a takedown notice to YouTube over a 30-second video of Lenz's baby dancing to a Prince song.

In the first ruling (PDF) of its kind, Judge Jeremy Fogel held that copyright owners must consider fair use before sending DMCA takedown notices.

"Fair use is a lawful use of a copyright," the judge wrote. "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."

Lenz first filed suit in October 2007, after Universal requested that her video be taken down, and YouTube kept it off its site for more than a month. Lenz argues that the Prince song is barely audible in the short clip and clearly represents fair use, which allows for limited use of copyrighted materials without permission. In order to protect First Amendment rights, the DMCA allows for targets of illegitimate takedown notices to seek damages against the copyright holder.

The suit was initially thrown out of the federal court in April of this year, but the Electronic Frontier Foundation, which is representing Lenz, filed a second complaint just 10 days later.

Corynne McSherry, an attorney for EFF, called the ruling "a major victory for free speech and fair use on the Internet" that will "help protect everyone who creates content for the Web."

Although Fogel refused to throw out the case a second time, he expressed doubt that Lenz would win. "The Court has considerable doubt that Lenz will be able to prove that Universal acted with the subjective bad faith," he wrote.