DMCA: Like Taking Music From a Baby
From my recent post at JETLBlog:
Most of you have probably already seen the above video by now. After all, if there’s one thing that Ally McBeal taught us, it’s that there’s nothing better than a dancing baby–at least if that baby is dancing to legally licensed music. Hear that song in the background? It’s Prince’s “Let’s Go Crazy,” and Universal Music was none too pleased to see this video on YouTube. After all, the mom who posted it didn’t go through the legal channels to get a license to the song playing in the background on the radio.
This sounds pretty silly, and the Electronic Frontier Foundation thought so too. After YouTube took down the video based on a DMCA claim, they subsequently put it back up six weeks later with a concession from Universal Music that the use of the song in the video fell under fair use. However, the mom in question, along with EFF, fought back. They filed suit under a little-used section of the DMCA allowing victims of meritless takedown notices to seek damages.
The case went to trial on Friday. Universal Music’s lawyers call this a case of first impression, making a legitimate distinction: in previous cases like this one, damages were awarded because of a false representation of copyright ownership. Here, Universal Music does own the copyright to the Prince song. So the question is whether there can be a misuse of the takedown notice where fair use is involved–or, as the judge noted, whether there can ever be misuse if there is indeed a legitimate copyright.
This is actually a very interesting issue, considering that fair use itself is basically judge-made law. Though there is precedent for what is fair use and what is not, it is litigated on a case-by-case, specific facts basis. However, even if Universal Music wins, it seems likely that they and companies like them will think twice about issuing takedown notices where the situation barely passes the laugh test, as that little clip of a dancing baby is certainly turning out to be more trouble than it was worth.
The judge did not indicate when he would rule. With the judge still out on the Harry Potter lexicon case as well, we could be seeing huge changes for the face of fair use in the near future.