Copyright Owners 'Must Consider Fair Use' Before Suing

In the nation's first such ruling, a federal judge on Wednesday said copyright owners must consider "fair use" of their works before sending takedown notices to online video-sharing sites.

The 10-page decision (.pdf) came a month after Universal Music told a San Jose, California federal judge that copyright owners need not consider the "fair use" doctrine before issuing takedown notices requiring online video-sharing sites to remove content.

The doctrine, recognized by  the Digital Millennium Copyright Act, permits limited use of copyright materials without the owner's permission.

Universal countered by arguing that no copyright holder should have to consider fair use before sending out takedown notices. Fair use is a defense available to those who infringe, not a right, the publisher claimed. Judge Jeremy Fogel disagreed. Here's his reasoning:

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.

It is based on free speech rights provided by the First Amendment to the United States Constitution. The term "fair use" is unique to the United States, and since lately to Israel as well; a similar principle, fair dealing, exists in some other common law jurisdictions. Civil law jurisdictions have other limitations and exceptions to copyright.