Back in 2007, proud mother Stephanie Lenz recorded a video of her young son happily bouncing about to Prince’s song, “Let’s Go Crazy.” The video is only 29 seconds long, but received a gigantic amount of attention when Lenz went to court over it. Universal Music Publishing Group complained to YouTube that the video infringed a copyright that Universal owns, and demanded that the video to be taken down. YouTube complied, and Lenz fought back.
The Northern District of California declared, and now the Ninth Circuit Court of Appeals affirmed, that, before sending a takedown notice under the Digital Millennium Copyright Act, the copyright holder must consider whether an unapproved use of its work is covered under fair use. In other words, copyright holders cannot make baseless infringement claims in the kind of “no harm, no foul” cases such as Lenz’s. If you hadn’t already gathered, the courts ruled that Universal did not make a reasonable inquiry into whether or not the use of the work may have been a fair use.
Under Title 17, Chapter 1, Section 107 of the United States Code, an unauthorized use of a work does not constitute copyright infringement if it is used for, among other things, noncommercial purposes that do not effect the market for, or value of, the work. If Universal came out on top in this litigation, where would it end? For example, would a cellphone-video of a meteor shower uploaded to YouTube infringe a copyright if somebody nearby was playing copyrighted music from a car? Should Universal be allowed to completely shut out any conceivable use of a copyrighted work it owns, no matter how insignificant or harmless, if Universal’s permission has not bee asked for or paid for beforehand?
Lenz thought that it was ridiculous for Universal to threaten her with legal action for sharing a home video of her son with family and friends. It is safe to assume that most would not expect a lawsuit for sharing an innocent video of their child having fun and dancing to a particular song. Attorney Marcia Hoffman of the Electronic Frontier Foundation claims that “[c]opyright abuse can shut down online artists or political analysts or ordinary families who simply want to share snippets of their day-to-day lives.”
The fair use exception was written into the United States Code for a reason. With the advent of the internet and mass sharing of all kinds of content, a few protected works are bound to see some unauthorized use here and there, and if the use of a work is not-for-profit and is truly not performed with the intention to steal or distribute the work unlawfully, the use should not be considered infringement. Of course, it is left up to the courts to determine the true intentions of the parties to a lawsuit. In this case, it seems that the courts made the right call.
By Brian Unger
