Eight years ago a lawsuit was started by the Electronic Frontier Foundation against Universal Music regarding a DMCA takedown of a home made video on Youtube that had background music playing. The EFF's client, Stephanie Lenz, had posted a home made video of her son dancing to Prince's "Lets Go Crazy", and though the music was virtually unintelligible, this unauthorized use of his music led Prince and his music studio to push for the removal of the video.
The suit states that Universal Music and Prince should have realized that the use of the music in the background was "Fair Use" under United States copyright provisions, and the removal of the video was an obvious misuse of the Digital Millenium Copyright Act. The EFF is attempting to prove that Universal Music is liable under 17 USC 512(f), the section of the DMCA that penalizes anyone for wrongful takedowns of copyright material, and should be fined for their actions. This is an uphill battle for the EFF, since wrongful takedowns have been very rarely acknowledged by US courts.
The suit has progressed to the 9th Circuit Appeals court, since the last decision in this case back in 2013 resulted in no clear victory for either side. Both sides appealed that decision, which is why the case has continued.
There have been some extraordinary statements from the counsel for Universal Music. The most interesting one to me is this one: (the system) "simply can't function if, as Ms. Lenz contends in this case, every takedown notice must be preceded by some consideration of fair use." Which means that the copyright holders feel that they do not have to determine whether or not something is actually legal when placed on the net. No, if it involves some material that has copyright protection, its shoot first and determine the legality later. It doesn't matter that virtually no one has the money to defend themselves in court when the copyright holders abuse the takedown section of the DMCA.
If the EFF and Ms Lenz win this case, and Universal Music actually has to pay a fine, it could set an important precedent for Fair Use. Unfortunately, they will have to show "willful blindness" on the part of the music studio, and that is a very high bar to clear.
You can read more about the story at Ars Technica.
