From The Hill:
The Ninth Circuit Court of Appeals on Monday ruled that copyright holders must consider fair use before demanding companies such as YouTube remove potentially infringing content.
The three-judge panel on the court determined Stephanie Lenz, who posted a YouTube video of her child dancing to a Prince song in 2007, can proceed with her lawsuit seeking damages from Universal, which pressed YouTube to remove the video under the Digital Millennium Copyright Act (DMCA).
“We hold that the statute requires copyright holders to consider fair use before sending a takedown notification, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law,” according to the majority opinion.
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The thing about the decision that I really want to bring to readers’ attention is what it says about the nature of fair use. About a year ago I wrote a blog post about the idea that fair use was an “affirmative defense.” I pointed out that many positive rights, including free speech, would manifest themselves in court as affirmative defenses, meaning that they would be asserted by a defendant to answer a complaint, but that they were still positive rights — a space for freedom of action, not merely an excuse. In its new ruling in Lenz, the Ninth Circuit makes this point abundantly clear, telling us that, “Fair use is not just excused by the law, it is wholly authorized by the law.” (p. 11 of the PDF).
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