Fair Use and a Baby Dancing in a Kitchen

AcadememontageThis is a guest post by Dànielle Nicole DeVoss, author of the article  “Academia, Academe, and Intellectual Property” in the new November-December 2015 issue of Academe. She is a professor of professional writing at Michigan State University and the 2015–16 junior chair of the Conference on College Composition and Communication Intellectual Property Caucus.

A while back, I was mad. Incensed is actually a more accurate word. A video I had posted to YouTube was stripped of its audio content because of what YouTube calls a “Content ID” claim. The video content was still live, but stripped of its audio, with a note indicating that the audio track was “disabled” because a track “has not been authorized by all copyright holders.”

YouTube has relied on a range of methods to deal with copyright-protected content. Previously, for instance, YouTube sent users a cease and desist order on behalf of the copyright holders. YouTube has also engaged in the practice of just completely pulling down video content if there was supposedly infringing work included.

In the case of the audio being disabled around 2007 and 2008, however, YouTube relied on fingerprinting software that automatically detected copyright-protected work and auto-disabled audio content—without there being any discussion between the video-hosting service and the content creator. That is, content creators had no opportunity to assert a fair use of the media before it was taken down.

Fair Use exists to protect our ability to take, use, mix, mash, remix, clip, and engage in other acts of otherwise copyright-protected works for a specific set of purposes. For a fair use to be determined, a court must conduct a four-factor analysis, analyzing:

  • the purpose and character of the use
  • the nature of the copyrighted work
  • the amount and substantiality of the portion taken, and
  • the effect of the use upon the potential market.

If fair use can only be determined in court, how is it that YouTube could aggressively and proactively remove material before users could even attempt to make a fair use argument for their work?

In 2007, a YouTube user named Stephanie Lenz posted a 29-second video clip of her two children dancing in her kitchen. Prince’s “Let’s Go Crazy” can be fuzzily heard in the background, under the happy squeals and shrieks of the children.

About three months after she posted it, Lenz received a YouTube notification that her video was taken down due to a complaint from the copyright holder. Lenz, in essence, did not have permission to reproduce and distribute the clip of Prince’s “Let’s Go Crazy.” Lenz petitioned YouTube to have the video reposted, which it was six weeks later.

In the meantime, the Electronic Frontier Foundation got involved in the dispute, and eventually the case went to court (Lenz v. Universal Music Corp.). Later in 2007, the U.S. District Court for the Northern District of California ruled that copyright holders must consider fair use before issuing takedown notices for content posted on the internet. Universal pushed back, arguing that it would take them an unreasonable amount of time and money to consider fair use for potential copyright infringements. On September 14, 2015, the 9th Circuit Court upheld the District Court’s 2007 decision.

In 2007, an EFF Staff Attorney, Marcia Hofman, argued on behalf of Lenz and others that “copyright abuse can shut down online artists, political analysts, or—as in this case—ordinary families who simply want to share snippets of their day-to-day lives.” In response to the 2015 9th Circuit Court decision, EFF Legal Director Corynne McSherry noted that “today’s ruling sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech.”

This is a significant victory for Fair Use, especially in today’s context of digital rights management and digital file fingerprinting. However, we have a lot of work to do. If we don’t continue to fight for our fair use rights to access, mix, mash, repurpose, and circulate media in the context of our scholarship and our teaching, fair use is a right that will, I have no doubt, be eroded and perhaps disappear in the coming years.

Articles from the current and past issues of Academe are available online. AAUP members receive a subscription to the magazine, available both by mail and as a downloadable PDF, as a benefit of membership.


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