US Court: Consider “Fair Use” Before Sending Takedown

August 22, 2008 by Dan Hartrell

Just days ago, a U.S. court made a decision that has reinforced the strength of “fair use”. From the EFF:

“A judge’s ruling today is a major victory for free speech and fair use on the Internet, and will help protect everyone who creates content for the Web. In Lenz v. Universal (aka the ‘dancing baby’ case), Judge Jeremy Fogel held that content owners must consider fair use before sending takedown notices under the Digital Millennium Copyright Act (’DMCA’).“

This could have an important effect on the balance between copyright protection and free expression. More below the fold…

Judge Fogel considered the possibility that this will make it difficult to target copyright infringement on the Internet. But Fogel ultimately ruled against Universal, the copyright holder.

“[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. The DMCA already requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice.”

Major copyright holders such as Universal have access to legal resources that citizen-producers may not. If copyright holders do not have to consider whether the use of their material is legally permissible before issuing a takedown notice, these takedown notices from powerful media companies could have a chilling effect on free expression. As stated by Judge Fogel, “a good faith consideration of whether a particular use is fair use is consistent with the purpose of the statute.”

With Canadian copyright reform on the horizon, American decisions such as this one may influence stakeholders. Will this demonstrate the importance of user rights, or will this add weight to demands for stronger copyright protection?