Ignore fair use at your peril!

One could be forgiven for thinking of the “Dancing Baby” case as a thing of the past.  It seems a long time ago that a district court affirmed that the music heard in the background (for only 29 seconds) of a video in which Stephanie Lenz’s baby is dancing — the music was Prince’s “Let’s Go Crazy” — was fair use, and told Universal Music that they were required to consider fair use before sending out take down notices under authority of the DMCA.  The video, after all, was posted in 2007.  Lenz sued Universal, arguing that, because they failed to consider even an obvious example of fair use before sending a take down notice for the video to YouTube, they had committed copyright misuse under section 512(f) of the Copyright Act by knowingly misrepresenting the legal situation in such a notice.

There was, in fact, an initial ruling that rejected some of Universal’s attempts to exonerate itself, back in 2010.  Then, in 2013, the judge rejected cross motions for summary judgment, essentially allowing the case to go forward on the misrepresentation claim.  Universal appealed this dismissal, and the Ninth Circuit Court of Appeals issued its decision today.  The Court of Appeals affirmed the lower court ruling, agreeing that the DMCA requires rights holders to consider fair use when sending take down notices and letting the suit go forward to determine if Universal was “willfully blind” to the clear fact that Ms. Lenz’s use was authorized by the law.

The thing about the decision that I really want to bring to readers’ attention is what it says about the nature of fair use.  About a year ago I wrote a blog post about the idea that fair use was an “affirmative defense.”  I pointed out that many positive rights, including free speech, would manifest themselves in court as affirmative defenses, meaning that they would be asserted by a defendant to answer a complaint, but that they were still positive rights — a space for freedom of action, not merely an excuse.  In its new ruling in Lenz, the Ninth Circuit makes this point abundantly clear, telling us that, “Fair use is not just excused by the law, it is wholly authorized by the law.” (p. 11 of the PDF)  In fact, the court is so clear and eloquent on this point that I want to quote a whole paragraph, which is found on page 13 of the PDF and which states the situation regarding fair use and affirmative defenses much better than I did:

Universal’s sole textual argument is that fair use is not “authorized by the law” because it is an affirmative defense that excuses otherwise infringing conduct. Universal’s interpretation is incorrect as it conflates two different concepts: an affirmative defense that is labeled as such due to the procedural posture of the case, and an affirmative defense that excuses impermissible conduct. Supreme Court precedent squarely supports the conclusion that fair use does not fall into the latter camp: “[A]nyone who . . . makes a fair use of the work is not an infringer of the copyright with respect to such use.” Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 433 (1984).

Given that 17 U.S.C. § 107 expressly authorizes fair use, labeling it as an affirmative defense that excuses conduct is a misnomer.

So perhaps it is time to stop scaring people with this language about fair use as an affirmative defense.  As courts keep telling us, fair use is a positive right, an authorized and vital part of the copyright law in the U.S.  We cannot have one half of that law — exclusive rights for creators — without the other half, which is fair use and the other exceptions that protect productive uses.  Without the latter, copyright would be mere protectionism, and, in all likelihood, unconstitutional.