Fair Use Must Be Considered In DMCA Notices

I Don't Believe in Imaginary Property writes "US District Judge Jeremy Fogel has ruled that an 'allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim,' which paves the way for a lawsuit against Universal Music over a ridiculous DMCA Takedown notice they filed. One can only hope that this ruling will some day be used against those who file misguided copyright complaints against computer printers. Those lawyers who rely upon buggy infringement detection programs to do their thinking for them — programs which are incapable of making subjective considerations like fair use — might want to think again before rubber stamping computer-generated DMCA Takedown notices."

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Summary of Universal's position

[UnknowingFool]

A brief recap for those who haven't been following the case:

Around Feb. 2007, Stephanie Lenz posted a Youtube video of her toddler laughing and dancing to Prince's "Let's Go Crazy". The song is heard somewhat indistinctly in the background of the low resolution, low fidelity 29 second video. Four months later, Universal sent a takedown notice to Youtube to remove the video. Mrs. Lenz with the Electronic Frontier Foundation filed a counter-notice and sued under a provision of the DMCA.

Universal wanted the case dismissed with their brief arguing:

• Fair Use is not a defense for copyright infringement
• The DMCA does not require copyright holders to check for Fair Use before sending a notice
• There is no such thing as "self-evident" Fair Use
• There was no way Universal could have know it was Fair Use

In court, Universal also tried to argue that their takedown notice wasn't a DMCA takedown notice because the notice had a disclaimer saying it wasn't. The notice however followed the same procedure as a DMCA takedown and was sent to the DMCA takedown email address at Youtube. This point is important as the DMCA has a provision that allows for lawsuits if copyright holder abuses the DMCA. The Judge didn't address this point in particular but apparently disagreed given his ruling.

Universal however seemingly admitted to ABC News that it doesn't really check material for Fair Use before sending out takedown notices and doesn't care:

Prince believes it is wrong for YouTube, or any other user-generated site, to appropriate his music without his consent. That position has nothing to do with any particular video that uses his songs. It's simply a matter of principle. And legally, he has the right to have his music removed. We support him and this important principle. That's why, over the last few months, we have asked YouTube to remove thousands of different videos that use Prince music without his permission.

This is another important point because copyright law requires copyright holders should be diligent when pursuing legal actions. From what we know of the RIAA lawsuits, Universal doesn't seem to think this applies to them.