This post was published 1 year 2 months 19 days ago and its content may not be valid anymore.

In the internet age it is easy for copyright holder to send a boiler plate C&D to any publisher to scare the bejesus out of them. For the first time in history a US court has ordered that a copyright holder MUST consider “fair use” before sending a nasty gram.

There was a case pending regarding the use of a Prince song (which Universal owns the rights to) in a home video of a baby dancing on YouTube. Universal demanded the video be removed, the woman disagreed and with the help of the EFF a California federal judge ruled:

“Even if Universal is correct that fair use only excuses infringement, the fact remains that fair use is a lawful use of a copyright,” U.S. District Judge Jeremy Fogel ruled. “Accordingly, in order for a copyright owner to proceed under the DMCA with ‘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,’ the owner must evaluate whether the material makes fair use of the copyright.”
Fogel added that an “allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim.”

Although I am no legal scholar this ruling sets a standard on the responsibility a copyright holder must take before releasing the legal hounds.

After the ruling Universal did not disagree that the video the way it was used could be considered “fair use” of Prince’s song.

Chalk one up one for the small guy!