Everybody agrees. Stephanie Lenz' video of her young son with Prince's "Let's Go Crazy" playing in the background was a fair use of a copyrighted work. But Universal submitted a DMCA takedown notice on the video and YouTube took it down for a month until Lenz was able to get it restored.
Now Lenz is suing Universal for interfering with her legal right to create and distribute the video. The issue: Is a copyright holder under a duty to consider the potential fair-use applications of its work before issuing DMCA take-down notices? Is failure to do so a breach of some kind? Universal moved (in a 12(b)(6) motion) to dismiss the claim on the theory that fair use is only a defense to a claim of copyright infringement and thus Lenz should not be able to use it offensively. Lenz and her Electronic Frontier Foundation lawyers argued that a fair use is a legitimate use of the work and that copyright holders should have to proactively exclude fair uses from their takedown demands. The DMCA requires that the copyright holder have:
"a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
Federal Judge Jeremy Fogel found (PDF) the text of the statute quite clear. The copyright owner must make a "good faith" claim. To make a good faith claim, one must examine the work in question to determine that the use is unauthorized – including fair use. Therefore, Lenz's claim for misrepresentation under DMCA is valid and may go forward.
The judge dismissed Universal's assertions that pre-takedown evaluation of the use would be burdensome.
Undoubtedly, some evaluations of fair use will be more complicated than others. But in 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. The DMCA already requires copyright owners to make an initial review . . . A consideration of the applicability of the fair use doctrine simply is part of that initial review.
It's not all good news, though. The court said it had "considerable doubt" that Lenz would be able to prove the subjective bad faith required to prevail on her claims. Indeed, the judge all but encouraged Universal to seek summary judgment after Lenz makes her case. But at least, she will be allowed to present her evidence.