Who would have thought that literal and figurative music icon Prince would go after Stephanie Lenz who posted her adorable children dancing to his “Let’s Go Crazy” on YouTube. Well, he did. And litigation ensued. Prince, who is notorious for protecting every facet of his art, sent a takedown notice to YouTube under the Digital Millennium Copyright Act (“DMCA"). The DMCA allows a copyright owner to ask that content be removed from a website if he has a "good faith" belief that the use of the work interferes with his copyright. YouTube complied stating that the video infringed. Stephanie sent a counter-notification claiming that the video was not infringing. YouTube reposted the video . Stephanie sued on the basis that YouTube misrepresented in the take down notice that the use was infringing. The case made its way to the Ninth Circuit Court of Appeals which held that, before sending a takedown notice under the DMCA, the copyright owner’s “good faith” belief requires consideration of fair use. The case now goes back to the trial court. Dance on baby, even though you are probably about 10 years old by now.

TAKE AWAY. The DMCA can be a powerful tool for protecting the copyright holder against unauthorized use of a work. But consumer advocacy groups have pointed out that the takedown procedure in the DMCA favors the major media companies at the expense of those who cannot afford to fight them. The DMCA bars the improper use of the takedown procedure. But before Stephanie, it was rarely enforced by the courts. Hopefully, Stephanie’s win will make aggressive copyright owners think twice before using the DMCA as a sword instead of a shield.

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