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Copyright owners must consider fair use arguments before demanding that online material be taken down, a San Jose federal judge ruled Aug. 20. The ruling sets up a possible court challenge between the mother of a dancing toddler and Universal Music Group, which demanded that YouTube remove a 29-second video in which Prince’s “Let’s Go Crazy” could be heard. The mother, Stephanie Lenz, is represented by the Electronic Frontier Foundation. In what he found was an issue of first impression, Judge Jeremy Fogel rejected Universal’s motion to dismiss, and its argument that the Digital Millennium Copyright Act doesn’t require copyright owners to consider fair use before sending a takedown notice. “If he had not rejected that, it would’ve given carte blanche to content owners to take down most anything — a ‘shoot first and ask questions later’ system,” said Corynne McSherry, an EFF lawyer working on the case. “Here, Fogel is saying you have to ask questions first.” In a prepared statement, Universal Music Group said: “While the court merely declined to throw the case out at this early pleadings stage, we remain confident that we will prevail in this matter.” Scott Oliver, an intellectual property lawyer at Morrison & Foerster, called Fogel’s ruling well-reasoned but “surprising.” “It is surprising to me that Judge Fogel would conclude that you need to do a fair use analysis,” Oliver said. “I don’t think that was the intent of Congress when they enacted the DMCA.” To take down infringing material, the DMCA says, a copyright owner has to provide a statement that it has “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” EFF argued that the analysis should include fair use, and Fogel agreed. “Even if Universal is correct that fair use only excuses infringement, the fact remains that fair use is a lawful use of a copyright,” Fogel wrote. “Accordingly, in order for a copyright owner to proceed under the DMCA with ‘a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,’ the owner must evaluate whether the material makes fair use of the copyright.” Fogel, however, wasn’t so warm to EFF’s argument that Universal acted in bad faith, taking down the video to appease Prince. “The court has considerable doubt that Lenz will be able to prove that Universal acted with the subjective bad faith required,” he wrote. Although Fogel wrote that damages may only be “nominal” for Lenz, he said that her alleged injury was adequate enough to proceed.

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