Digression: Path Breaking Ninth Circuit Decision on “Fair Use”

Profuse apologies for the unusual delay in getting back to from where I left of last time. I have been swamped with work and other professional commitments which are on the verge of taking a toll on my mental health.  To the utter dismay of some people,  before diving into from where I left last time, I will momentarily digress from the topic under discussion. This is to highlight a landmark decision on US Copyright Law .While a sincere attempt has been made to avoid legalese, occasional usage of the same is indispensable; lest it be oxymoronic to the topic under discussion (After all this a legal blog, even though the primary objective is to decode the complexities of IP law to a layman).

 9th Circuit sets new “Fair Use”Precedent [ Lenz v. Universal] : “Copyright holders to consider fair use before sending takedown notices” 

A doting mother uploads a twenty-nine second video of her children dancing  to Prince’s “Let’s Go Crazy” on YouTube. To a non-lawyer, it would be inconceivable to imagine this innocent act of affection embroiled in a legal controversy. However, as Balzac –  the 19th century French novelist and playwright – stated, “Laws are spider webs through which the big flies pass and the little ones get caught.

Hence, was the plight of Stephanie Lenz – a Pennsylvania based mother. Universal Music Corporation (who was at that time enforcing Prince’s copyright) served her with a DMCA TakeDown Notice on grounds that Prince’s song was the focal point of the video (Watch the video and analyse how “focal” the music is. To me the dominant aspect of the video are the adorable children and not the music!).

After YouTube removed the video, in 2007 the Electronic Frontier Foundation  on behalf of Lenz sued Universal on grounds of failure to consider lawful “fair use” before issuing the takedown notice. The US Court of Appeals for the Ninth Circuit held that the rigors of  the Copyright Act mandated copyright holders (Universal in this case) to analyse “fair use” before asking online service providers like YouTube to remove content that they controlled.

In an age of increasing internet activity wherein ordinary people use online service providers to share candid photographs and videos of their family and friends, the pro-consumer/user approach adopted by Judge Tallman is worthy of appreciation. While I am supportive of rights of content creators and artists, I fail or rather refuse to rationalize the potential loss (monetary or otherwise) Prince/Universal could have incurred by a twenty-nine second, non-commercial home video. Furthermore, there is no way that the video under litigation could serve as a substitute for the original Prince song. Both videos are in stark contrast to each other and any fan of Prince’s “Let’s Go Crazy” is unlikely to watch Lenz’s video as a substitute for the original. Not being an infringement case, this was not even a triable issue before the Ninth Circuit.

This decision comes as a major blow to the copyright lobbyists – the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA).   Being the typical Washingtonian lobbyists they are, aggressively pushing for stringent copyright protection, RIAA’s statement that they respectfully disagreed with the court’s conclusion about the DMCA and the burden placed upon the copyright holders to analyse “fair use” before sending “Takedown Notices” does not surprise me. In fact, this is a rare case of split between Hollywood and Silicon Valley. While the RIAA and the MPAA supported Universal (not to my disbelief considering that Universal is RIAA’s Board Member); Twitter, Tumblr and Google rallied behind Lenz.

Amidst the Hollywood – Silicon Valley split and related mudslinging, this case is a win for ordinary internet users who due to lack of awareness on copyright issues succumb to deadly legal tactics of large corporations. Even though the Ninth Circuit’s decision on issue of “fair use” is final, the absence of guidance from other Circuit Courts warrants an advisory at my behest – “Please verify the copyright status of background music and other related media before uploading a video.”

And with this, I bow down to EFF – one of the seemingly few crusaders of free speech and liberal IP reform. While I have always held EFF in high regard,with them representing Lenz on a pro bono basis raises them to a pedestal of reverence(Contrary to popular belief, I can be high on drama!).

Any valuable feedback and insight into the topic will be deeply appreciated. Omission to use footnotes and endnotes as a  mode of citation is deliberate; eliminating any semblance to an academic discourse. Contrary opinion on grounds of feasibility will be welcomed; not to mention my non – existent technical aptitude for writing HTML codes (I have been told that HTML works best for inserting academic citations).