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Recording companies, motion picture studios and other copyright owners issue numerous takedown notices each day, targeting everything from home videos to campaign ads that include segments of songs or newscasts. When a copyright-holder tells a website like YouTube that one of its postings violates the holder’s exclusive rights to license the material, federal law requires that the posting be removed immediately.
But the Ninth U.S. Circuit Court of Appeals in San Francisco said the copyright-holder must first consider whether such a video amounts to “fair use” of the work, making it eligible to be legally posted. Fair use includes journalistic accounts and criticism, educational uses for teaching or research, and brief, private postings that don’t damage the commercial market for the work.
The law “requires copyright-holders to consider fair use before sending a takedown notification,” and those that fail to do so can be held liable for damages, said Judge Richard Tallman in the 3-0 ruling, the first on the issue by any appeals court.
A music company’s demand that YouTube take down a 29-second home video of two children dancing to a song by Prince backfired Monday when a federal appeals court used the case to make it harder for copyright-holders to act against brief, non-commercial uses of their material.