About Wave Farm
Court orders copyright holders to 'consider' fair use before sending takedowns
Sep 14, 2015 10:43 pm
Eriq Gardner in The Hollywood Reporter writes that the Ninth Circuit Court of Appeals Sept. 14 ruled that copyright owners must "consider" fair use before sending internet takedown letters. The case revolved around a YouTube video of a toddler dancing to a 29-second clip from Prince's "Let's Go Crazy" song. Wikipedia says fair use is, "a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders." Circuit judge Richard Tallman wrote in this decision, "Even if, as Universal urges, fair use is classified as an 'affirmative defense,' we hold — for the purposes of the DMCA — fair use is uniquely situated in copyright law so as to be treated differently than traditional affirmative defenses. 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) ... " But what does "consider" mean, and can the bots that currently send take-down notices on copyright issues "consider" fair use? "To be clear, if a copyright holder ignores or neglects our unequivocal holding that it must consider fair use before sending a takedown notification, it is liable for damages under § 512(f)," writes Tallman. "If, however, a copyright holder forms a subjective good faith belief the allegedly infringing material does not constitute fair use, we are in no position to dispute the copyright holder’s belief even if we would have reached the opposite conclusion," writes Tallman, who says juries will decide those questions. And a jury will decide the baby-dancing-to-Prince issue in a new trial.