Appeals Court Rules Youtube Video Of Baby Dancing To Prince Was Fair Use

Transcript

AUDIE CORNISH, HOST:

When Stephanie Lenz saw her toddler jamming out in the kitchen to the Prince song "Let's Go Crazy," naturally she took a video and posted it to YouTube.

(SOUNDBITE OF ARCHIVED RECORDING)

STEPHANIE LENZ: What do you think of the music?

CORNISH: OK, yes, the audio quality there is terrible, but Universal Music said the video infringed on the song's copyright. It asked YouTube to take the video down, which it did. Lenz petitioned YouTube to repost the video and it did. This was all back in 2007.

Now, Lenz sued Universal, saying the company should've recognized that the music was used legally. And yesterday, an appeals court in San Francisco ruled in her favor. It was a blow to companies that send out those take down notices by the hundreds and tips the scale toward those posting others' work. Daniel Nazer is an attorney at the Electronic Frontier Foundation. He was part of the team that represented Lenz in this case. Welcome to the program.

DANIEL NAZER: Hi.

CORNISH: So help us understand here - is it right that this woman - Stephanie Lenz - used this music legally under what's known as fair use? How does that apply here?

NAZER: Absolutely. This is a really clear case of fair use. It's a home video of a baby dancing and there's some music in the background. And there's no way this would be some kind of market substitute for the original Prince song.

CORNISH: So what was the argument from the publisher? Is it because of how many views the video got?

NAZER: No. Their view was that they can just take it down without considering fair use. They took a pretty strong line in this case that fair use is just too much work for them to have to consider before they send takedowns.

CORNISH: So this is really about the takedown notice itself. And we should note that Google, which owns YouTube, also took Lenz's side. Why are these takedown notices such a big deal?

NAZER: They're a big deal because they're the easiest way to get content taken off the Internet. In a legitimate case, where there's clear infringement, the law is doing what it's supposed to do. But unfortunately, we've seen these kind of notices abused where people want to censor a speech they don't like or they just don't care about fair use and they think it should go down.

CORNISH: Now, from the other point of view here, this music was indeed used in a video without permission, and doesn't Universal, or others who produce work who own it, have a right to protect it?

NAZER: They have a right to protect their copyright, but that doesn't extend to taking down fair uses. And you don't need permission to make a fair use, and that's, in fact, exactly what fair use is supposed to protect.

CORNISH: What to you were the implications of this ruling had it gone the other way?

NAZER: I think if it had gone the other way, it would've been a really bad precedent. If the idea that you could take something off the Internet without even considering whether it's legal and protected by fair use would be an open invitation to censorship.

CORNISH: So this puts the burden where it remains - back on the copyright holders to check and see if something should fall under the law or not.

NAZER: Exactly.

CORNISH: Is that fair? (Laughter) Is that...

NAZER: I think so. The law gives copyright owners an ability to essentially remove material without having to go to court. All this case says is that that power shouldn't be abused.

CORNISH: Help us understand some of the nuance here. I mean, it may be a victory for your side, but I understand you feel it's a mixed decision.

NAZER: The decision is complex in a lot of ways. It sends the case back to the district court for further findings on whether Universal did consider fair use in good faith in this case. But we're very happy with the ruling that copyright owners have to consider fair use.

CORNISH: Daniel Nazer, before I let you go, I want to ask about Stephanie Lenz and her toddler. How old is that kid today, and is he still a fan of Prince's "Let's Go Crazy?"

NAZER: He's 9 years old. He's been up walking without the assistance of a pusher for a long time. And I'm afraid I don't know if he still likes Prince.

CORNISH: Daniel Nazer is an attorney at the Electronic Frontier Foundation. Thank you so much for speaking with us.

NAZER: Thanks for having me. Transcript provided by NPR, Copyright NPR.