It’s been almost a year since we first brought you the story of a woman who decided to file a lawsuit against Universal Music Publishing Company alleging that their filing of a Notice and Takedown Request with YouTube to remove this video of her 13 month old son dancing to Prince’s "Let’s Go Crazy" constituted legal misappropriation in violation of her rights:
That article focused on the desirability — actually, in our minds, need — for website operators to conform to Section 512 of the Digital Millennium Copyright Act and designate an agent to receive removal notices from copyright holders and follow the proper procedure to its legal end. This effectively provides immunity from copyright infringement lawsuits based upon the postings of third party posters on the website.
That recommendation remains unchanged by the recent decision of the United States District Court for the District of Northern California to deny the Motion to Dismiss filed by Universal in this case. In fact, the District Court’s decision to let the case go forward to trial underscores the benefit of engaging in full Section 512 compliance, as YouTube is the ONLY party involved in the controversy that is now not readying for a full blown, time consuming, money draining federal court trial. Your choice: $ 85 filing fee or lawyering up at $ 350+ an hour for a few months. In fact, we are often shocked to find out how many websites not only neglect the DMCA and its required language, but fail to have ANY "Terms of Service" governing site usage and participation. We highly recommend that every website — but especially those allowing third parties to post content — have strongly worded Terms of Service (often referred to as "Terms and Conditions") that reserve a broad right to edit or delete content and remove site users who do not follow those rules. We can help you draft such language if necessary.
But two new lessons emerge:
First, for those of you copyright owners (including many of our broadcast friends) about to send a Notice and Takedown request to have your copyrighted material removed from a website, you must now explicitly stop, take a breath and consider whether the poster of that copyrighted material has any Fair Use rights. This was the central issue of the case: whether "Fair Use" is a use authorized by law which prevents a takedown from occurring. The District Court decided that Fair Use, by virtue of its place in Title 17 of the US Code, is authorized by law (even though it is not specifically mentioned in the DMCA, the applicable statute under consideration in a Notice and Takedown Request). The District Court noted that the copyright owner’s views will be subjective and its inquiry not overly-intensive, but it must consider such rights just the same. That opens the door, as it did in this case, to a full-blown factual inquiry into whether there is in fact a Fair Use occurring.
Second, it reminds us of the uncertain nature of the Fair Use defense by highlighting that this is (a) a fact-specific inquiry that often requires a court proceeding to resolve and (b) usually is not resolved by the court until well into the trial process, given that it is a defense to action. Our general advice to the common man is that you never rely exclusively on Fair Use for the reasons discussed above and for the separate reason that it is one of the most misquoted legal doctrines known to man, with the average user believing that any minimal use of content is a "fair" one when, in fact, the defense consists of four separate factors, only one of which takes into account the amount of material used (and also balances the substantiality of the content against the amount). Fair use is not for beginners — please leave this inquiry to the professionals!
Ultimately, while the Notice and Takedown procedure is relatively simply to commence, the twin effects of this decision discussed above are likely to benefit the average Internet surfer. Many copyright owners are likely to decide that the potential for litigation is not worth protecting a thirty second audio or video clip (that is also likely to lead to more material of real interest being posted to the Internet; don’t believe me — go search on YouTube for clips from your favorite sporting event and you’ll often find some rather paltry results: