A federal appeals court sided with EFF yesterday on several of the major questions at issue in the long-running Lenz v. Universal copyright case. Lenz—sometimes referred to as the “Dancing Baby” case because it centers on a 29-second home video of a toddler dancing with a song by the musician Prince in the background—has long been recognized as a test of the rights enjoyed by users, and the obligations facing people who want to take down online speech.
The big takeaway of yesterday’s opinion is, yes, that copyright holders must consider fair use before sending a takedown notice. But just as important is the basis of that conclusion: again today we have a federal court making it clear that fair use is not just a carve-out of the copyright system but a right on the same level of those described in the rest of the statute.
For example, the court states explicitly that “Fair use is not just excused by the law, it is wholly authorized by the law.” However well attested that principle is in the statute and in case law, it is still sometimes considered controversial. Hopefully this decision puts that debate to rest: whether the copyright holder grants permission or not, a fair use is an authorized use.