Have you ever taken a video of you and your friends at a festival only to have it taken down by YouTube due to the song being played in the background? Of course you have, and an Appeals Court just ruled that music labels might be reaching too far with their take down notices. The case at hand is known as the “dancing-baby case” because it all started in 2007 when Stephanie Lenz uploaded a video of her toddler dancing to a Prince song. After a takedown notice was issued, the Electronic Frontier Foundation took up the case pro bono arguing that Universal Music‘s takedown practices violated the Digital Millenium Copyright Act.
In short, the DMCA is a way for websites to avoid copyright liability for content hosted on their sites. However, in order for websites to avoid running afoul of this law, they must react very quickly to takedown notices. In a copyright suit, the person with the potentially infringing content is allowed to raise the defense of “fair use”, where the copyrighted material is used for purposes such as commentary, search engines, parody, news reporting, teaching, or scholarship. However, Universal Music Group wanted that to only apply after a lawsuit had been filed against a potential infringer. Many of us can agree that while our festival videos are great to post, they’re probably not worth a full fledged lawsuit to defend.
Luckily, the Court sided with Ms. Lenz and delivered a victory for all of us. The Court held that Universal (and all labels going forward) must consider possible “fair use” before issuing a takedown notice. The case will move forward and Universal will have to prove that it did in fact consider fair use before issuing the takedown notice for the original video. While this is a victory for fair use, its a marginal one because computer-automated screening may already be enough to prove that the label “considered fair use” for the purposes of this ruling. At the very least, this is a step in the right direction and a sign that courts won’t let music labels completely bully music sharing into silent submission.