Two recent copyright claims in the US have raised some interesting issues relating to publication of material on the internet.

Dancing babies

In the first case, Stephanie Lenz, with the backing of the Electronic Frontier Foundation (EFF) brought a successful case against Universal Music for the right to post a 29-second video clip of her young children dancing to the Prince song, "Let's Go Crazy" on YouTube. Universal had issued a notice under the US Digital Millennium Copyright Act (DCMA) requiring her to remove the video from the site on the basis that the use of Prince's material was not authorised by the copyright owner.

Mrs Lenz argued that she had published the clip so that family and friends could see her baby dancing, and that the takedown notice under the DCMA had been issued in 'bad faith'. Under the DCMA, an alleged infringer of copyright is required to remove the content complained of where the person issuing the notice believes in good faith their copyright has been infringed.

The court held that before a takedown notice is issued the copyright owner must assess whether fair use has been made of the material before taking action. In this case, such an assessment had not been made and Mrs Lenz was entitled to repost the video.

News blogging

The second case relates to a claim made by Associated Press (AP), a major news agency. AP's claim that the quotation of its stories by an internet blog is copyright infringement could have significant implications on the internet.

Drudge Retort, a user-generated content site on which users comment on excerpts and links to news stories has been issued with seven take down notices under the DCMA. This has left Drudge Retort in a situation where it does not know how to advise its users on which content can be posted without infringing copyright.

The stories complained of contain between one and three sentences from AP's original articles, and only one contains the headline originally used by AP as the others contain headlines used by Drudge Retort's members.

Drudge Retort argues that the copying of the articles should be regarded as "fair use". This is an exception that allows copyrighted work to be used without copyright holder's consent. This includes the use of material for the purposes of news reporting.

However, AP argues that the use in this situation goes beyond "fair use" and while brief references and linking to copyright material are acceptable, reproduction and cutting and pasting without a proper licence are infringing acts and do not fall within the exception. AP has also alleged that Drudge Retort's actions amount to "hot news misappropriation." This is a feature of New York State common law and allows news agencies to protect the essence of their news stories, although the facts themselves cannot be copyrighted.

Although this case has not gone to the courts, it will be interesting to see the impact that this has in the blogging field.

Comment

In the UK, the equivalent to the defence of "fair use" is "fair dealing".

In the first case, there is no specific exception which would cover the situation, although if Mrs Lenz had ensured that the video was only available privately to family and friends, it is unlikely that there would be infringement.

In the second case, a fair dealing exception for use of a work for the purposes of criticism, review or news reporting would apply. Provided that sufficient acknowledgement was given to the author, and that the use of the material was not breaking an exclusive story before the person owning the right to the exclusive has had the chance to issue the story, there would be no infringement.

Both cases show, however, that a pragmatic approach should be taken to copyright infringement. Had Universal Music not taken legal action, it is doubtful that the clip would have reached the number of views resulting from the publicity generated.