Serious YouTube test of copyright law

[Metropolitanjury]

A woman who posted a home video on YouTube of her 13-month-old son dancing to Prince's "Let's Go Crazy" squared off Friday against entertainment giant Universal Music Corp. in a federal court case that tests copyright law.

The issue in Stephanie Lenz's lawsuit against Universal is whether the owner of the rights to a creative work that's being used without permission can order the Web host to remove it without first considering whether the infringement was actually a legal fair use - a small or innocuous replication that couldn't affect the market for the original work.

Lenz's lawyers, from the Electronic Frontier Foundation, say her 29-second video, with fuzzy camerawork and unclear sound, was such an obvious noncommercial fair use that Universal should have to reimburse her for the costs of taking it out of circulation for more than a month last year.

The company's lawyers say the 1998 federal law that authorized copyright-holders to issue takedown orders didn't require any such inquiry - in fact, they argue, there's no such thing as an obvious fair use.

No court has ever addressed the issue, said U.S. District Judge Jeremy Fogel of San Jose, who is presiding over the case.

Lenz, a writer and editor from Gallitzin, Pa., used her digital camera to take the video of her son, Holden, dancing to "Let's Go Crazy" on a home CD player in February 2007, and she posted the file on YouTube for family and friends, her lawyers said.

Four months later, Universal, which owns the rights to the song, ordered YouTube to remove the video and nearly 200 others involving compositions by Prince. Copyright owners gained that power under the 1998 Digital Millennium Copyright Act, which allows them to remove Web postings that they believe to be unauthorized duplicates without having to sue for infringement.

Lenz, exercising her rights under the same law, notified YouTube several weeks later that her video is legal and ordered it restored. YouTube complied after waiting two weeks, as required by law, to see whether Universal would sue Lenz for copyright infringement - a suit that would have allowed her to claim fair use as a defense. Lenz then sued Universal in Northern California, YouTube's home district, claiming the takedown order was an abuse of the copyright law.

"There must be some requirement that a copyright owner both consider fair uses and determine honestly whether they exist before sending their (takedown) notice," Lenz's lawyer, Corynne McSherry, said in court papers.

She said the video, which focuses on the toddler and contains only a snippet of the song, couldn't have any conceivable impact on the market Universal's copyright was meant to protect.

But Fogel, at Friday's hearing, said he was concerned that requiring copyright holders to consider the possibility of fair use before ordering a takedown puts judges in the business of "trying to read their minds" and seems to be an expansion of the 1998 law.

Universal's lawyer, Kelly Klaus, argued that even brief homemade videos have a potential commercial effect if they proliferate on a site like YouTube and that Lenz's posting flies in the face of the 1998 law, which allows copyright holders to order removal of work believed to be an infringement.

By Ms.Bobby Aanand, Metropolitan Jury.