A recent appellate court ruling highlighted the fact that requisite consideration of fair use, when it concerns the Digital Millennium Copyright Act, might differ slightly than it traditionally did.
The U.S. 9th Circuit Court of Appeals recently increased the burden on copyright holders attempting to prove infringement following its ruling in favor of Stephanie Lenz against Universal Music. The largest of the record labels attempted to argue that fair use is merely an affirmative defense, but Circuit Judge Richard Tallman stated in his opinion that regarding the Digital Millennium Copyright Act fair use is “uniquely situated” and should be treated differently than other traditional affirmative defenses, the Hollywood Reporter explained.
“We conclude that because 17 U.S.C. § 107 created a type of non-infringing use, fair use is ‘authorized by the law’ and a copyright holder must consider the existence of fair use before sending a takedown notification under § 512(c),” Tallman’s opinion read, according to the news outlet.
It is essential to always consider fair use in good faith
In 2007 Lenz posted a 29-second video of her toddler dancing to Prince’s “Let’s Go Crazy” to YouTube. Universal sent the video hosting website a takedown notice alleging that the clip violated publishing rights on the Prince song, and as such was a breach of the record giant’s rights. This allegation was quickly disputed by groups such as the Electronic Frontier Foundation, an organization which eventually represented Lenz in the case against her.
The EFF noted that the Digital Millennium Copyright Act requires copyright holders to at least consider the concept of fair use before issuing a takedown notice. Tallman even noted that, under § 512(f), if a copyright holder neglects to consider fair use there is a liability for damages. Copyright holders must determine that infringing material does not constitute fair use in good faith before proceeding with a takedown notice in order to remain protected from any damages that may result from unwarranted allegations of infringement.
“Today’s ruling sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech,” Corynne McSherry, EFF legal director, said in a press release. “We’re pleased that the court recognized that ignoring fair use rights makes content holders liable for damages.”
The bright side for copyright holders
Still, the ruling wasn’t all bad for copyright holders, the Hollywood Reporter noted. The appeals court also considered what kind of mind frame is required to determine what constitutes fair use. On this, the court decided that if a copyright holder does in fact put the requisite consideration into whether the infringing material falls under the fair use category or not, and, in good faith, determines that it does not, the court is in no position to rule against the plaintiff.
Though the long-lasting dispute ended up in Lenz’s favor this time, it could move up to the Supreme Court since it represents more than just a disagreement over the right to post a video using copyrighted music – the case is, in fact, being used to shape copyright law as we know it.
What Business Owners Get Wrong Before Meeting a Litigation Attorney
What should you expect when meeting a litigation attorney about a business dispute? You should expect to describe the dispute in your own words, hand over the most important documents, flag any deadlines or immediate threats, and leave with a clearer picture of the problem, what information is still needed, and the likely next steps. […]
Arbitration vs. Litigation vs. Mediation: What New Jersey Businesses Should Know Before Signing a Contract
Arbitration resolves disputes privately before an arbitrator whose decision is usually final, while litigation resolves them in court with full rights of appeal. Whether a business ends up in arbitration or litigation is often decided when it signs the contract, long before any dispute arises. Key Takeaways When facing a contract dispute, carefully consider your […]
Can You Own Part of a New Jersey Business Without a Written Agreement?
Can you own part of a business in New Jersey without a written agreement? Yes, it is possible. Under New Jersey’s Uniform Partnership Act, a partnership can arise when two or more people carry on a business as co-owners for profit, whether or not they ever intended to form one. Ownership doesn’t necessarily depend on […]
Crisis-Proofing Your New Jersey Business: Building a Crisis Response Plan Before You Need One
For New Jersey businesses, crisis preparedness should be viewed as a legal and operational function, not simply an emergency-management exercise. A well-designed crisis response plan can help preserve evidence, protect confidential communications, meet reporting obligations, limit unnecessary exposure, and prevent an already difficult situation from becoming a larger legal problem. Key Takeaways A serious crisis […]
Monmouth County's Next Development Wave: What Developers and Investors Need to Know
Monmouth County is entering a significant new phase of development. For those looking to acquire property or undertake a new project, understanding the market opportunity is only the beginning. The more important question is whether a particular property can actually be developed as contemplated and what approvals, agreements, and other conditions will be required to […]
Are Your Conversations with AI Shielded from Discovery? Courts Are Split
Whether a client’s prompts to a generative AI tool and the documents it produces are protected from disclosure depends on the case type, who claims protection, and whether counsel was involved. In United States v. Heppner, a New York federal judge ruled that a criminal defendant’s communications with an AI platform were protected by neither […]
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Sign up to get the latest from our attorneys!
Explore What Matters Most to You.
Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.
Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.
Let`s get in touch!
Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!
