Magazine article Information Today

Dancing Babies and the Future of Digital Copyright

Magazine article Information Today

Dancing Babies and the Future of Digital Copyright

Article excerpt

In early 2007, a young mother named Stephanie Lenz filmed a 30-second video of her then13-month-old son and posted it on YouTube so she could share it with her family. I'm sure it seemed very innocuous at the time.

The video ( featured the toddler pushing a plastic walker and "dancing" while the song "Let's Go Crazy" by Prince played in the background. The song is barely recognizable and audible amid static, background noise, and Mom's voice asking, "What do you think of the music?"

However, the song was recognizable enough for Universal Music Corp., which held the copyright to the song, and the company sent YouTube a takedown notice under the Digital Millennium Copyright Act (DMCA). The DMCA was intended to provide a safe harbor for content hosts such as YouTube that might be liable for infringing content posted by users. If the copyright owner provides notice to the host of the infringing content and the host removes the infringing content from the website in response, the host is not liable for copyright infringement. YouTube took down Lenz's video and sent her a notice indicating that the video had been removed and why.

DMCA Takedown Versus Fair Use

After 5 years of litigation, the case is now headed for a trial on the issue of whether Universal violated the DMCA's notice and takedown provisions by not considering whether Lenz's use of the video was permitted under copyright's Fair Use doctrine. Fair use provides that certain uses of copyrighted works must be permitted in order to promote creativity and, as described in the Constitution, the "progress of science and useful arts." In practice, a proposed fair use is evaluated based on whether it is commercial or noncommercial, whether it "transforms" the work into something distinct from the original, how much of the original is used by the new work, and to what degree the new work impacts the market for the old work.

Fair use is usually determined by an analysis of these factors and typically occurs as part of a lawsuit filed by the copyright owner against the users for infringing on the work. In this case, however, Lenz is claiming that Universal abused the DMCA notice and takedown process by not considering that her video was a fair use of Prince's song.

Just Not Practical

To prevent abuse, DMCA allows damages, costs, and attorney's fees against anyone who "knowingly materially misrepresents ... that material or activity is infringing." Lenz, who is represented by the Electronic Frontier Foundation, is arguing that because fair use of a copyrighted work is not an infringement of that work, the failure to consider fair use was "bad faith" on the part of Universal, and, therefore, it was a misrepresentation of whether the use was infringement. Universal's position is that doing a fair use review in advance of every takedown notice is "just not practical."

Notice and takedown issues pervade the social media world. Both Facebook and Twitter have policies that respond to DMCA takedown notices by removing the allegedly infringing content and notifying the account holder. Notably, Twitter recently made some changes to its notice and takedown policy. While Twitter's 140-character limit might seem to limit infringement, the posting of images and links regularly raises infringement concerns. Twitter's past practice was to remove a post that was the target of a takedown notice and contact the poster. …

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