[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Monday ruled [text, PDF] that copyright owners must consider “fair use” before demanding the removal of online materials. The fair use doctrine, composed of a four-part test [text], essentially permits use of copyrighted materials where the use in question is sufficiently transformative to have little to no impact on the marketability of the original. Before this ruling, copyright owners would routinely send takedown demands to websites such as YouTube without justification or consideration of fair use. Writing for a unanimous court, Judge Richard Tallman stated:

copyright holders cannot shirk their duty to consider, in good faith and prior to sending a takedown notifications, whether allegedly infringing material constitutes fair use, a use which the [Digital Millennium Copyright Act] (DMCA) plainly contemplates as authorized by the law. That this step imposes responsibility on copyright holders is not a reason for us to reject it.

In the case before the court, plaintiff/ appellee Stephanie Lenz uploaded a recording of her young child dancing to Prince’s hit “Lets Go Crazy.” When Universal Music Group demanded YouTube remove the video, Lenz, backed by the advocacy group Electronic Frontier Foundation [official websites], sued for violation of the DMCA [text, PDF]. In ruling in her favor, the Ninth Circuit stated that if a jury finds Universal had “subjective” knowledge that the video was fair use, Lenz may be able to recover symbolic damages. The court’s overall ruling seems to indicate that First Amendment rights are not to be overshadowed in the music and movie industry’s fight against copyright infringement [JURIST report].