On Friday, the OTW filed an amicus brief in the case of Lenz v. Universal. This long-running case received a lot of press a few years ago. Universal Music Group had issued a DMCA takedown notice claiming copyright infringement based on Stephanie Lenz’s YouTube video of her toddler dancing to Prince’s song “Let’s Go Crazy.” The court held that Ms. Lenz’s posting was a non-infringing fair use of the song. At this point, the case is on appeal to the Ninth Circuit Court of Appeals. The main issue before the court is the degree to which rights holders like Universal have to consider whether something is fair use before issuing a takedown notice.
Our brief, written by the Stanford Fair Use Project and joined by Public Knowledge and the International Documentary Association, argues that the law is designed to deter overreaching takedowns. The statute requires the sender of a takedown notice to affirm under penalty of perjury that the use is not “authorized by law,” and punishes misrepresentations. As a result, we argue, the law requires rights holders to form a good faith belief about whether a use is fair before issuing a notice under the DMCA–and should punish those who take a “shoot first and ask questions later” approach as Universal did for Ms. Lenz’s video.
Special thanks go out to the many fans who submitted their stories of how DMCA takedown notices affected their lives–they helped us craft arguments about how powerfully people can be harmed by overreaching takedown demands.