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08.22.2008 12:00AM
Judge: Toddler Dancing to Prince Song Can Stay on YouTube
Protecting its copyright, Universal Music Publishing Group went after this 29-second video posted on YouTube because of the music (“Let’s Go Crazy,” by Prince) audible in the background.

The mom who posted the video of her dancing toddler took Universal to court. Wednesday, in some what some are praising as a victory for the “fair use” of copyrighted material, a federal judge in California told Universal, Baby, you’ve got to slow down.

He ruled that ruled that copyright holders must consider whether the use of the work is “fair use” under law before unleashing a takedown notice under the Digital Millennium Copyright Act.

“[I]n the majority of cases, a consideration of fair use prior to issuing a takedown notice will not be so complicated as to jeopardize a copyright owner’s ability to respond rapidly to potential infringements,” Judge Jeremy Fogel wrote in his ruling.

The saga began in February 2007 when one Stephanie Lenz posted the video, according to the suit filed by the nonprofit Electronic Frontier Foundation. In June 2007, YouTube notified Lenz it had removed the video because of a takedown notice from Universal. The San Francisco-based nonprofit Electronic Frontier Foundation filed suit representing Lenz, and although the video returned to YouTube, EFF has fought to keep the case alive, seeking unspecified damages from Universal.

Prince and has lawyers have vigilant defenders of his copyrights. “Prince believes it is wrong for YouTube, or any other user-generated site, to appropriate music without his consent,” Universal told ABC News in October 2007, according to the judge’s order. “That position has nothing to do with any particular video that uses his songs. It’s simply a matter of principle.”

That’s why it asked YouTube to remove thousands of videos that use Prince’s work without permission, Universal said.

But if lawyers just file takedown notices willy-nilly because a client wants them too, they could be held liable under a “misrepresentation” provision in the DMCA, the order indicated.

The judge pointed to a section of the DMCA requiring a copyright holder to assert it its takedown notices that it has a “good faith belief” that the material is not legal.

The judge rejected Universal’s various arguments, including its assertion that requiring such a good-faith belief about a copyright violation would slow rights-holders’ ability to fight infringement.

“As Lenz points out, the unnecessary removal of non-infringing material causes significant injury to the public where time-sensitive or controversial subjects are involved and the counter-notification remedy does not sufficiently address these harms,” the judge wrote before citing a Senate report on the matter. “Requiring owners to consider fair use will help ‘ensure … that the efficiency of the Internet will continue to improve and that the variety and quality of the services on the Internet will expand’ without compromising ‘the movies, music software and literary works that are the fruit of American creative genius.’”


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