The case of the dancing baby vs. Universal

/ 21 July 2008

Last year Universal sent a “takedown notice” to YouTube claiming that this video infringed on its copyright.

(The video is back on YouTube because it was reposted, YouTube did take down the original.)

Why the takedown notice? Universal identified the music in the background as Prince. To Universal this indicated an infringing use. DMCA allows them to send takedown notices for any infringing use.

What about “fair use” you might ask? It does seem that the use of Prince in this video is about as fair as it gets. Let’s step through my own rough fair use analysis (facilitated by the University of Minnesota Libraries). It turns up a surprisingly weak, though still favorable, case for fair use. But more important, remember that fair use is a defense, not a right. In other words, the only analysis that matters is that of a judge and fair use does not really exist until a judge says so.

The Electronic Frontier Foundation is suing Universal for abusing the DMCA takedown process in this case. This kind of takedown has the effect of chilling the use of copyrighted material even when such use is “fair” enough. Universal’s point? Fair use cannot exist unless infringement exists: after all, fair use is a defense in an infringement case. Thus by claiming the use was fair, the EFF actually affirms that there was infringement. If there was infringement, then the takedown notice was, by DMCA rules, legitimate. As Wired reported an exchange with the judge in the EFF case:

“Are you saying there cannot be a misuse of a takedown notice if the material is copyrighted?” [Judge] Fogel asked [Universal lawyer] Klaus.

“I don’t think ‘fair use’ qualifies,” Klaus answered.

Quite a comfy argument, no? By this logic any use of any copyrighted material anywhere on the net is fair game for a takedown notice. You can argue fair use all you like, but you will have to argue it after your creative work has been removed from the network.

What a world, eh? Beware the backgrounds of your videos. Watch out when you put that song on the soundtrack. The studios don’t want their customers to use anything that comes out the pipe. Just open wide, let it in, don’t say a word.

I say: support the Electronic Frontier Foundation. This organization is at the heart of defending the net as it should be. It is the ACLU of our day. Become a member today.

[Update: the EFF won this case.]

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