Digital Millennium Copyright Act: How a Toddler May Shape the Future of Fair Use

The Digital Millennium Copyright Act

Digital Millennium Copyright ActA recent appellate court ruling highlighted the fact that requisite consideration of fair use, when it concerns the Digital Millennium Copyright Act, might differ slightly than it traditionally did.

The U.S. 9th Circuit Court of Appeals recently increased the burden on copyright holders attempting to prove infringement following its ruling in favor of Stephanie Lenz against Universal Music. The largest of the record labels attempted to argue that fair use is merely an affirmative defense, but Circuit Judge Richard Tallman stated in his opinion that regarding the Digital Millennium Copyright Act fair use is “uniquely situated” and should be treated differently than other traditional affirmative defenses, the Hollywood Reporter explained.

“We conclude that because 17 U.S.C. § 107 created a type of non-infringing use, fair use is ‘authorized by the law’ and a copyright holder must consider the existence of fair use before sending a takedown notification under § 512(c),” Tallman’s opinion read, according to the news outlet.

It is essential to always consider fair use in good faith

In 2007 Lenz posted a 29-second video of her toddler dancing to Prince’s “Let’s Go Crazy” to YouTube. Universal sent the video hosting website a takedown notice alleging that the clip violated publishing rights on the Prince song, and as such was a breach of the record giant’s rights. This allegation was quickly disputed by groups such as the Electronic Frontier Foundation, an organization which eventually represented Lenz in the case against her.

The EFF noted that the Digital Millennium Copyright Act requires copyright holders to at least consider the concept of fair use before issuing a takedown notice. Tallman even noted that, under § 512(f), if a copyright holder neglects to consider fair use there is a liability for damages. Copyright holders must determine that infringing material does not constitute fair use in good faith before proceeding with a takedown notice in order to remain protected from any damages that may result from unwarranted allegations of infringement.

“Today’s ruling sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech,” Corynne McSherry, EFF legal director, said in a press release. “We’re pleased that the court recognized that ignoring fair use rights makes content holders liable for damages.”

The bright side for copyright holders

Still, the ruling wasn’t all bad for copyright holders, the Hollywood Reporter noted. The appeals court also considered what kind of mind frame is required to determine what constitutes fair use. On this, the court decided that if a copyright holder does in fact put the requisite consideration into whether the infringing material falls under the fair use category or not, and, in good faith, determines that it does not, the court is in no position to rule against the plaintiff.

Though the long-lasting dispute ended up in Lenz’s favor this time, it could move up to the Supreme Court since it represents more than just a disagreement over the right to post a video using copyrighted music – the case is, in fact, being used to shape copyright law as we know it.

If you have concerns over a potentially infringed copyright, or whether something you produced constitutes fair use, consult with an entertainment law attorney to learn more.

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Anthony R. Caruso is a business transactional attorney in New York and New Jersey with experience in structuring, negotiation and completion of legal deals involving business, entrepreneurs, athletes and performers.

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