Gotta break some eggs to make an omelette

Was heartened to read in an article by the SFChron's Bob Egelko that a federal judge ruled yesterday that copyright holders must first determine whether an alleged misuse is in fact fair use prior to ordering the content taken down. Here's his story.

The case involves a woman in Pennsylvania who posted a 29 second clip on YouTube of her toddler dancing to Prince's "Let's Go Crazy." Universal Music Corp, which owns the rights to the song, ordered YouTube to take the clip (and 200 others like it) for digital copyright infringement, citing the 1998 Digital Copyright Management Act (DCMA). YouTube took the clip down, and the woman is suing to have it reinstated because the clip constituted fair use. The judge took her side in the case.

"The ruling by U.S. District Judge Jeremy Fogel of San Jose was the first in the nation to require the owner of the rights to a creative work to consider whether an online copy was a "fair use" - a small or insignificant replication that couldn't have affected the market for the original - before ordering the Web host to take it down."

To simplify, the DCMA has a shoot first, no questions later clause - if you suspect someone is misusing your content, you notify them to remove the content, whether or not it's fair use. If they take it down immediately, they are not liable for the misuse. So when a regular Jill posts a 29 second clip set to copyrighted music, she is liable to take it down right away instead of facing the corporate owner and saying, "Really? That's a threat to you, even though the only audience is our elderly grandparents?" So over time there has been very little case law emerging that would help clarify the limits of the DCMA, either for intellectual property owners or those who seek to define fair use of that content. Murky waters, indeed.

I am the first to say that copyright ownership is undervalued on the Web, and that intellectual property owners should be compensated if there is commercial gain to be had from third party use (or should have the right to terminate that use.) However this is clearly a case where there was no intent to seek commercial gain. Frankly, it seems like Goliath picking on David ( if David was a stay-at-home mom.)

A ruling like this begins to help stakeholders on both sides of the argument understand the limits of the DCMA and - in the case of Universal - take steps to protect content accordingly. Clarity is always better than uncertainty, don't you think?