Copyright Talk

Yesterday saw a possibly dramatic development in the YouTube world. The DMCA (digital millenium copyright act) includes a provision designed to address the concerns of copyrght holders over the computer technology that allows easy and instant infringement and, in the view of some large media companies, pervasive and extremely widespread infringment on internet sites such as YouTube. The DCMA allows a copyright owner who discovers an infringing use of their material on a website to deliver a “takedown” notice to the website, alleging copyright infringment and basically requiring the website to pull the material on the word of the owner in their takedown notice in exchange for protection from damages against the website.

Much criticism has been levelled at this process on different sides of the debate. On the one hand, media companies have complained that the burden of policing infringement should be on website owners, in the same way that newspapers and book publishers are responsible for what they print. But users of the sites complain that fair uses of copyrighted material have essentially been ignored in favor of a simple procedure that gives all the power to the owner of the copyright.

One YouTube user fought back, and yesterday won an important early legal argument. Here’s the background: a mother posted a short video to YouTube of her toddler dancing to a Prince song which could be heard fuzzily in the background. Universal Music issued a take down notice to YouTube, which removed the clip. The mother argues (1) that the 30 second clip of the song in the background of the video is a portected fair use, and (2) that Universal Music has a duty to consider in good faith whether there is a protected fair use before they jump in and send a take down notice which is nearly certain to result in the removal of the material.

Wednesday’s court ruling dealt solely with number two (2). The court said that fair use should be considered prior to the issuance of any takedown notice.

While this is a significant ruling in the legal analysis of the DMCA, in practice it may still not make much difference to YouTube users, as fair use is far from a black and white determination. But, it’s still heartening to find that the underlying principals of copyright have not entirely taken a back seat to zealous protection of business assetts.

You can read the short CBS news story here.