Appeals court strikes a blow for fair use in long-awaited copyright ruling

The US Court of Appeals for the 9th Circuit issued a ruling that could change the contours of fair use and copyright takedown notices. In an opinion published Sept 14, 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. Years after Stephanie Lenz uploaded a video to YouTube, precedent will be set.

The judges ruled 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. "Fair use is uniquely situated in copyright law so as to be treated differently than traditional affirmative defenses," wrote US Circuit Judge Richard Tallman for the majority.