That’s not fair… or is it?
A posting by Eriq Gardner on Yahoo (Cute baby video wins battle against music label) provides a summary of a dispute between Stephanie Lenz and Universal Music Group. The case involves the posting of a video on YouTube by Stephanie Lenz back in 2007 of her toddle dancing to the Prince song “Let’s Go Crazy”. In response, Universal demanded removal of the clip since she did not pay for rights to use the song.
But, instead of just complying, Lenz decided to fight back working with the Electronic Frontier Foundation. Ultimately, a judge ruled that her video was a “fair use” of the song. She then sought damages against Universal for sending a merit-less take-down request. As it stands now, it looks like she may be successful against Universal - but it hasn’t entirely played out.
As digital media continues to expand, it’s worth reviewing what things like “fair use” really mean. United States copyright law is covered in title 17 of the U.S. code. Sections 107 through 118 highlight several limitations of a copyright owner about their ability to limit the reproduction and authorization of their property. One of the more significant areas is now known as “fair use” which has been progressively determined through a number of court rulings over the years. Section 107 specifically calls out the particulars of fair use which include: the purpose and character of the use (e.g., non-commercial use such as non-profit or educational purposes), that nature of the copyrighted work, the portion used in relation to the work as a whole and the effect of the use upon the potential market (or value) of the copyrighted work.
Now, I’m not a lawyer, and I certainly won’t pretend to be one here. But, this ruling does continue to push the envelope of what is allowable in terms of copyrighted materials. With the value of digital content declining (e.g., the revenue of a physical disc vs. a download) original content owners are trying to keep whatever control and revenue they can. But, as in Universal’s case here, I think many content companies are going about this the wrong way. For example, if I wanted to use music in a simple home video that I then posted to YouTube, it would be better if the right owner simply provided me with a portal where I could pay a small fee for use of the song. (People are already doing this – why not try to monetize that instead of spending money on lawyers to prevent it.) Perhaps I could even have a site that enables the download of these songs directly. This type of situation doesn’t really reduce the market for the materials, but it does enhance the enjoyment of the media itself. People are willing to pay for premium content. And, if they won’t, those companies won’t be in business for very long anyhow.
