Free for a Fee

In an opinion (PDF) published this morning, the three-judge panel found that Universal Music Group’s view of fair use is flawed. The record label must face a trial over whether it wrongfully sent a copyright takedown notice over a 2007 YouTube video of a toddler dancing to a Prince song. That toddler’s mother, Stephanie Lenz, acquired pro bono counsel from the Electronic Frontier Foundation. The EFF in turn sued Universal in 2007, saying that its takedown practices violated the Digital Millennium Copyright Act.

The judges ruled today that copyright holders “must consider the existence of fair use before sending a takedown notification.” Universal’s view that fair use is essentially an excuse to be brought up after the fact is wrong, they held. UMG’s view of fair use solely as an “affirmative defense” is a misnomer.