This order from the US District Court for Northern California rejects Universal Music Group’s request to dismiss the lawsuit against the music company by Stephanie Lenz.  Months after posting a clip of her son dancing to a Prince song to YouTube, Universal asked the video host to remove the clip, claiming she was infringing their copyright of the song “Let’s Go Crazy.”  Following the procedure under the DMCA, Lenz told YouTube that her video was legal, and it was restored – Universal did not pursue legal action against Lenz since her use was clearly fair.  However, in conjunction with the EFF, Lenz sued Universal for acting in bad faith, and asked for compensation covering her legal costs.  She alleged that Universal specifically did not “belie[ve] that [Lenz] actually infringed a copyright,” and that its takedown request was entirely improper.  This order covers the most recent development, with Judge Jeremy Fogel refusing to dismiss the lawsuit as Universal wanted, and declaring that copyright holders must take fair use into account before issuing DMCA takedown notices.  Universal had argued that it was not incumbent on copyright holders to consider a potential fair use defense, and that doing so would be costly and disruptive.  The Judge rejected this argument, and while admitting that he did not believe it to be likely that Lenz could eventually win the lawsuit against Universal, still allowed it to progress nonetheless.
    Fogel’s decision is going to play a big role in my paper, as this order sets precedent for other courts to look fair use at when determining takedown-abuse cases.  The decision is unique in that it helps define what a copyright holder must do to clear the “materially misrepresents” hurdle set in Section 512, adding consideration of fair use.  Previously, it could have been possible for copyright holders to more recklessly send takedown notices to service providers, and make a credible claim that they were not active in misrepresenting since a limited (and undefined) amount of care was given to the process.  With the addition of fair use, the burden is higher, which I will argue is beneficial to the takedown process.  Despite the judge’s assurances that adding a fair use component will not add a tremendous amount of complexity to the process, it will also be worth mentioning how many people disagree with this claim, believing that the four factor test for determining fair use is inherently nebulous and difficult to use.