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Fair Use? Jury to Weigh on Universal Takedown of YouTube Baby Video

Posted by Mark J. Miller on January 28, 2013 02:31 PM

On Feb. 7, 2007, Stephanie Lenz did something completely unmiraculous. She posted a 29-second video of her 14-month-old son dancing around the house with a push toy while enjoying Prince’s Let’s Go Crazy. Cute, right?

Universal Music's lawyers were less than charmed — and a six-year legal battle ensued between the music giant and Google, the parent company of YouTube. While more than 1.2 million people have heard Prince do his thing on the video since its posting, Universal has been trying to get Lenz to take it down, citing copyright infringement.

But Lenz and lawyers with the Electronic Frontier Foundation have been fighting to keep it up — and will now have have their case heard before a jury. At issue is whether Universal considered the definition of “fair use” before sending the takedown message, The Hollywood Reporter notes.

A Thursday ruling by U.S. District Court Judge Jeremy Fogel framed the issues that a jury must weigh in siding with Lenz or Universal in the case, which could have implications for many hwo who post videos that include the copyrighted works of others and find themselves in a dispute with their owner. 

"Lenz is free to argue that a reasonable actor in Universal's position would have understood that fair use was 'self-evident' and that this circumstance is evidence of Universal's alleged willful blindness,”  Fogel wrote. “Universal likewise is free to argue that whatever the alleged shortcomings of its review process might have been, it did not act with the subjective intent" required by the copyright statutes.

Large sums of money aren't at issue here, so a settlement isn't likely. (Fogel noted that, because Lenz cannot demonstrate damages, she may only be awarded money to cover the small expenses for reposting her video.) 

Meanwhile, YouTube is involved with a completely different kind of deal. The Guardian reports that Google, which owns the site, “is poised to take a stake of close to 10% in Vevo, the music video website founded by record company majors Universal, EMI Music, and Sony.” The deal is worth a reported $50 million.

The move could help the music giants grow their digital distribution business as CD sales continue to slide.

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