fairMirror, mirror, on the wall, what’s the fairest use of all?

All the way back in 2008, Universal Music sent a takedown notice for a video featuring 30 seconds of a toddler dancing to a Prince song. The kid must be in elementary school by now, but Ars Technica reports that the 9th Circuit Court of Appeals has finally issued a ruling (PDF) denying motions for summary judgment in the case—so after only seven years, it can proceed to trial, and the court can consider the issue of whether Universal overstepped its bounds in sending the takedown notice. (Will the kid be in college by the time it’s settled?)

The biggest takeaway from the ruling, at least in my book, has been a judiciary smackdown of the notion that fair use is only an affirmative defense. Two out of the three judges who considered the case stated that Universal should have given due consideration to whether the video was fair use before sending its takedown notice. This is news to me, given that for as long as I’ve been reading about fair use, what I’ve read everywhere, even on Wikipedia, is that fair use doesn’t protect you from the expense and bother of getting sued—it just means you can defend yourself afterward, if you can afford to pay the lawyers.

But the question of exactly what kind of consideration copyright owners should give to fair use before sending a takedown notice or suing seems to be up in the air. The dancing baby’s mother’s lawyers (provided by the EFF) are suing Universal under a section of the DMCA that imposes a penalty for sending a false takedown notice. That section has been largely toothless until now, as nobody has been able to make a false takedown claim stick.

And it may still be toothless even now. As Mike Masnick writes at Techdirt, the judges really didn’t issue much clarification at all, and the ruling is a bit self-contradictory in terms of how the EFF’s lawyers can prove Universal didn’t consider fair use beforehand. Universal just has to claim it had a “subjective good faith belief” that the video wasn’t fair use. And then how can the EFF prove that it didn’t?

Is fair use a paper tiger, generally useless except to people or companies (such as Google) who can afford enough lawyers to get it applied to them? Or are companies actually going to have to start considering the matter before sending takedown notices after all? I suppose we’ll just have to wait and see.


  1. The courts don’t deal with DMCA takedown notices. Consequently, while you can bring suit arbitrarily, you can’t send DMCA takedown notices arbitrarily — you must have good cause.

    The ruling was a yawn. It didn’t add anything new. It said that existing precedents still hold and that the district court’s ruling was correct: the case isn’t a slam-dunk for either side and has to go to trial.

    For some people the accompanying discussion might’ve clarified what was already the case: that you can’t send a DMCA takedown notice unless you believe that the material violates your copyright. Since fair use isn’t a violation of your copyright, you can’t send a takedown notice unless you believe the material isn’t fair use. Whether the material would or wouldn’t be found to be fair use if taken to court isn’t the question, only that you *believe* that it isn’t fair use.

    Since neither side produced evidence indicating whether Universal did or didn’t believe the video wasn’t fair use, the case has to go to trial. That’s all the ruling was.

    Note that the resulting trial won’t be to determine if the video was or wasn’t fair use — only what Universal believed about the matter. It’s all very meta.

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