Universal Slapped Over Dancing Baby Fracas

SAN FRANCISCO (CN) - Universal Music Group should have considered whether a woman's use of a Prince song in a YouTube video constituted fair use before it sent her a takedown notification, the Ninth Circuit ruled Monday.

Stephanie Lenz sued Universal in 2007 after it took down a 29-second video of her two young children dancing to the R&B artist's song "Let's Go Crazy. She alleged violation of the Digital Millennium Copyright Act.

At the time Lenz posted the video, the panel's opinion says, Universal was Prince's publishing administrator responsible for enforcing his copyrights.

A federal judge found that Universal failed to consider fair use before it sent the takedown notification -- raising a triable issue as to whether Universal formed a "subjective good faith belief" that the song's use was illegal -- and after a hearing in July the Circuit upheld the court's decision.

In the three-judge panel's 34-page opinion, U.S. Circuit Judge Richard Tallman said that Lenz's claim "boils down to a question of whether copyright holders have been abusing the extrajudicial takedown procedures provided for the DMCA by declining to first evaluate whether the content qualifies as fair use."

Universal's "sole textual argument," Tallman said, is that "fair use is not 'authorized by law' because it is an affirmative defense that excuses otherwise infringing conduct."

"Even if, as Universal urges, fair use is classified as an 'affirmative defense,' we hold -- for the purposes of the DMCA -- fair use is uniquely situated in copyright law as to be treated differently than traditional affirmative defenses," he said.

Tallman said that Universal faces liability if it knowingly misrepresented in the takedown notification that it had formed a good faith belief the video was not legally authorized, and he said Lenz indeed presented evidence that Universal did not form "any subjective belief about the video's fair use -- one way or another -- because it failed to consider fair use at all, and knew that it failed to do so."

A copyright holder who pays "lip service" to fair use consideration, he said, is still subject to that liability.

"Copyright holders cannot shirk their duty to consider -- in good faith and prior to sending a takedown notification -- whether allegedly infringing material constitutes fair use," Tallman said.

Writing separately from the majority, U.S. Circuit Judge Milan Smith partially dissented, finding that "the relevant representation in this case is Universal's assertion that the video is infringing."

"Universal knew that a fair use was not infringing, knew that it had not considered fair use, and nonetheless asserted that the video was infringing," Smith said.

"In sum, I would hold that parties must individually consider whether a work is a fair use before representing that the work is infringing in a takedown notice."

Neither side could be immediately reached for comment on Tuesday.

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