It sounds paradoxical, but that’s the argument made by Universal in its defense of an overzealous DMCA takedown notice sent to Stephanie Lenz. That notice was sent to Lenz after she posted a YouTube video of her then-13 month-old son dancing in her kitchen to the barely-intelligible strains of Prince. Give me a minute to walk through the background of what caused Universal to make this twisted argument.
Lenz, represented by EFF, has sued Universal for violating 17 USC 512(f), which penalizes abuses of the DMCA’s notice-and-takedown procedures. Specifically, 512(f) says:
(f) Misrepresentations.— Any person who knowingly materially misrepresents under this section—
(1) that material or activity is infringing…
shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer… who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material …
Thus, if Lenz wasn't infringing copyright, and Universal knew that and sent the notice anyway, it's liable.
And it's hard to see how Lenz's use isn't fair. It's a non-commercial, 29-second work having no effect on the market for Prince's work. A first glance should tell anyone with some copyright experience that this is fair use; a first glance should tell anyone at all that this isn't worth sending a takedown notice.
But Universal is trying several arguments to get out of the penalty. For one thing, it claims that the misrepresentation wasn't “knowing.” For another, it says that it wasn't a misrepresentation to say that a fair use was infringing. For that to be true, a fair use must be an infringing use.
This is, to say the least, weird. Fair use is defined in the US Code as being non-infringement:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work…is not an infringement of copyright.
So according to the language of the statute, if it's a fair use, it's not an infringement. Simple enough, and quite a relief when a lot about fair use isn't simple. But of course, Universal couldn't have it be that way.
In its brief, Universal claims that since fair use is an affirmative defense, a fair use must at first be infringing before the defense is claimed. An affirmative defense is an explanation for a defendant's actions that excuses or justifies the actions. Note the difference between “actions” and “offense.” If you kill someone in self-defense, it's not murder. There's not question you killed the person, but because of the affirmative defense of self-defense, there was no murder. Someone may have been killed, but the legal criteria of murder have not been met.
The same principle can be applied in a less morbid case. Let's say I've used a song melody and some lyrics to create a parody—a Supreme Court-approved fair use. Have I made a derivative work without the author's permission, as required by section 106? Yes. Is that a copyright infringement? No, because we're not selectively applying bits and pieces of copyright law one at a time. Section 107, fair use, applies before, during, and after the time I make the parody.
Universal, on the other hand, seems to be saying that any time someone uses a work without permission, they're infringing. While that may be the case the majority of the time, defining infringement is more than just looking at section 106, as important as that is.
There's more to this case than I've discussed here—we haven't gotten into a discussion of some of Universal's other arguments—such as the fact that it didn't knowingly misrepresent that the clip was infringing, or what 512(f) requires in terms of diligence before sending a notice.
But I do want to highlight another, less risible argument that Universal makes.
That's the argument that there's no such thing as obvious fair use. I don't think that's the case. Even in commentaries sympathetic to Lenz, there's also been some discussion to the effect of “until a court rules on a use and finds it fair, it isn't fair use.” That's vastly overstating the uncertainties surrounding fair use. A use is fair or not in its inception—the fact that a court has never made a decision on Lenz's video doesn't make it any less fair, just as a few sentences quoted from a novel in a review is a fair use, whether or not a judge ever sees the author or the reviewer in court.
There's a lot of moving parts to the doctrine of fair use, and since there isn't a hard-line-one-size-fits all mathematical formula to determine this, there's going to be a fair number of cases in a gray area. Add to this the natural caution of lawyers not involved in a case to hedge bets and you get a lot of quotes in the media about how something is “likely” or “unlikely” to be a fair use.
That being said, though, just because there is a gray line in the middle doesn't mean we can't identify extremes. There are uses that are clearly fair—when the facts of a case so clearly align with the stated goals of the statute and all the existing case law that there is no question among any minds that the use is fair or infringing.
Because if you can't ever say that a use is fair until a court sees it, you can't ever say that a use is infringing before a court sees it (since a fair use is not an infringement). Which is absurd. Of course it's an infringement to burn 500 Prince CDs and sell them to all and sundry. Of course it's fair use to read a book aloud in class, or post a newspaper clipping on an office bulletin board. A fact-specific legal determination means that the facts matter—not that each and every case needs to be adjudicated before its legal status can be known.
Some things are simply obvious, and it doesn't take a rocket scientist federal judge to make those determinations. But zealous advocacy knows no bounds, it seems, even to the point of pushing paradoxes before the bench.