Stephanie Lenz uploaded a video of her child dancing to Prince’s tune – Let’s Go Crazy, to YouTube. In the video, the child is seen making moves, while the song is played in the background. The video was uploaded in 2007 on YouTube.
Universal Music, the owner of the sound recording, was not too happy with the use of the music in the video, which was getting great attention. UM sent a DMCA take down notice to YouTube, and YouTube took it down. Stephanie sent a notice to YouTube claiming that the use of the song in the video was fair use, and the video was thereafter, restored by YouTube.
Aggrieved by Universal Music’s action, Stephanie filed a suit claiming that Universal Music was liable for misrepresentation as it had not considered whether the use of the song in the video was permitted under the law, which is required to be done before a DMCA notice is sent. Referring to a statement made by Universal Music with respect to its intent to take down all uses of Prince’s music from YouTube, Stephanie claimed that Universal Music was acting in bad faith without assessing if each video amounted to fair use or not.
Affirming the decision of the District Court, the Ninth Circuit held that a fair use assessment is necessary before a DMCA notice for take down can be issued. It further pointed out that whether such an assessment was pursued or not was a question of fact to be determined by a Jury.
The ruling places the onus on copyright holders to carry out a fair use assessment before sending a DMCA notice. Such an assessment must be independent, and a notice can be sent only if the use is considered not fair use.
Is the onus on copyright holders fair? Yes, in the light of increasing instances of unfair take down actions. But, the burden will surely impact efforts towards controlling online piracy.