Universal Says DMCA Takedown Notices Can Ignore 'Fair Use' - Via Threat Level:

SAN JOSE, California -- Universal Music told a federal judge here Friday that takedown notices requiring online video-sharing sites to automatically remove content need not consider whether videos are protected by the "fair use" doctrine.

The doctrine permits limited use of copyright materials without the owner's permission.

The music company made the argument Friday as part of a lawsuit brought by a Pennsylvania woman whose 29-second video of her toddler dancing to Prince's "Let's Go Crazy" was removed last year after Universal sent YouTube a takedown notice under the Digital Millennium Copyright Act.

The act requires the automatic removal of material a rights holder claims is infringing its copyrights. If it isn't removed, legal liability can be placed on YouTube or other video-sharing sites. But the act also allows the uploader -- in this case, the Pennsylvania mother of the dancing toddler -- to demand the video return online.

Universal did not challenge Stephanie Lenz's assertion that the video was a "fair use" of Prince's song. After being taken down for six weeks, the video went back online last year, having now generated about half a million hits.

The courthouse dispute on Friday centered on a rarely used clause in the DMCA -- originally approved by Congress in 1998 -- allowing victims of meritless takedown notices to seek damages in a bid to deter such notices and breaches of First Amendment speech.

The Electronic Frontier Foundation, the woman's law firm, asked U.S. District Judge Jeremy Fogel on Friday to award attorneys' fees and other unspecified monetary damages under Section 512 of the DMCA.

In what Fogel said was a "case of first impression," Universal attorney Kelly Klaus said Universal or other copyright holders are not liable for damages when somebody asserts fair use to reverse a takedown notice.

Klaus and the judge agreed that damages have been awarded when a sender of a takedown notice falsely represents copyright ownership. But in this case, Universal owns the rights to Prince's song.

"Are you saying there cannot be a misuse of a takedown notice if the material is copyrighted?" Fogel asked Klaus.

"I don't think 'fair use' qualifies," Klaus answered.

Corynne McSherry, an EFF staff attorney, countered. She said the DMCA's damages clause "intended to prevent misuse of takedown notices," even when there's a fair-use defense.

Fogel, who did not indicate when he would rule, said "It's a very important issue of statutory interpretation."

While there is no bright-line rule, the factors to consider whether a video that's uploaded to a file-sharing site is a fair use are: how much of the original work was used, whether the new use is commercial in nature, whether the market for the original work was harmed, and whether the new work is a parody.

Here are Universal's and EFF's latest briefs in the case.

See Also:

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• Study This: Copyright Law Hurts, Helps Economy
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(Read Original Article - Via Threat Level.)