'Fair use comes first in Web video: Dancing baby sets legal landmark'

It’s a little early to call this a landmark decision.

Stephanie Lenz posted a YouTube video of her baby bopping out to a Prince Tune that was playing in the background. Universal Music sent YouTube a DMCA take-down notice. YouTube removed the video and notified Ms. Lenz of Universal’s assertion of infringement. Ms. Lenz sent YouTube a counter-notice challenging Universal’s assertion, and YouTube restored the video. Ms. Lenz then sued Univeral for issuing a fraudulent take-down notice. Universal sought a summary judgment dismissing the case and the judge denied the motion, allowing Ms. Lenz to go forward and argue her case on fair use grounds.

Note that no decision has been rendered; the judge’s decision merely allows the trial to continue. Note also that, despite popular opinion, there is no such thing as “fair use” except as an affirmative defense in a court of law. What Ms. Lenz is seeking is a declaratory judgment that her incidental use of the Prince tune constitutes fair use, which would prevent Univeral from suing here. If the judge does, in fact, find in her favor, that will be a landmark decision that will set an important precedent — but we’re still a long way from there. Stay tuned….

Yeah—and given that the judge has openly expressed his skepticism that Lenz will be able to persuade him that Universal crossed over the line, I’m not expecting too much out of the outcome.

Still, the admonishment on public record to copyright holders that they need to consider whether a use is likely to be considered fair before they send the takedown notice is worth something.