Posted by: rmostell | August 25, 2008

“Let’s Go Crazy” over Copyright and Fair Use

There’s been a good deal of discussion in the news recently (see below) about the controversy over a 29 second YouTube video named “Let’s Go Crazy #1” also known as the “dancing baby” video. In brief, a woman made a video of her children playing in the kitchen with Prince’s popular 1984 song “Let’s Go Crazy” playing in the background and the copyright owner, Universal Music Group (“Universal”), sent a “takedown notice” to YouTube. The video was taken down and later put back up on YouTube. So now the woman with help from the technology advocacy group Electronic Frontier Foundation (EFF) is suing Universal Music Group claiming misrepresentation by Universal and damages resulting from having her video taken down. You can read more details about the case below.

Last week Federal District Judge Jeremy Fogel in San Jose, California, ruled that Universal Music Group had not properly evaluated the video to determine whether the woman had legally posted the video under the “fair use” doctrine of the U.S. Copyright Law (Title 17, section 107). Section 512 of the Digital Millenium Copyright Act (DMCA) of 1998 requires that copyright owners must determine whether the use of their works is “authorized by the copyright owner, its agent, or the law” before issuing a takedown notice. Thus, Judge Fogel issued an order denying Universal’s motion to dismiss the case.

So why is this important? Why is this important for educators? It’s important primarily for two reasons:

1. In education, we use a lot of copyrighted materials for teaching students and rely on the fair use doctrine to protect our right to do so. The court ruling establishes again that “fair use” of copyrighted materials is not an excuse from or exception to the law but is a integral part of the copyright law that gives us the right to use copyrighted materials in teaching.

2. Before claiming infringement in a takedown notice, copyright owners must evaluate copied materials for fair use including the four factors spelled out in the fair use doctrine (Title 17, section 107). We as educators should also make the same evaluation of fair use before using copyrighted materials in our teaching programs.

The case Lenz v. Universal on the EFF website.

Prince “Let’s go crazy” video on Google Video (7:27 min) – No longer available (2015)

2015 Update:  “Let’s go crazy” video on YouTube (1:55 min)

Now (2015) on Wikipedia

More: Copyright Information & Academic Copyright Information

The Fair Use Doctrine (excerpt)

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

U. S. Copyright Law (Title 17)

Digital Millenium Copyright Act of 1998

The court decision on EFF website (excerpt)

Though Congress did not expressly mention the fair use doctrine in the DMCA, the Copyright Act provides explicitly that “the fair use of a copyrighted work … is not an infringement of copyright.” 17 U.S.C. § 107. Even if Universal is correct that fair use only excuses infringement, the fact remains that fair use is a lawful use of a copyright. 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. 17 U.S.C. § 512(c)(3)(A)(v). An allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim pursuant to Section 512(f) of the DMCA.

News Stories and Blogs:

Los Angeles Times: Judge brings ‘fair use’ doctrine into YouTube copyright case

Los Angeles Times: A victory for fair use?

San Francisco Chronicle: Woman can sue over YouTube clip de-posting

Associated Press: Judge: ‘Dancing baby’ lawsuit can proceed

c/net News: For YouTube videos, a ‘fair use’ boost

G4TV: Universal Suit Over Youtube Takedown In Question

Ars Technica: Fair use gets a fair shake: YouTube tot to get day in court

iTWire: Universal Music was wrong about YouTube dancing baby

Wired: Judge: Copyright Owners Must Consider ‘Fair Use’ Before Sending Takedown Notice

Proskauer New Media and Technology Law Blog: Let’s Go Crazy: What Does It Mean to “Consider” Fair Use?


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