What do you get when you combine a bouncing baby boy, a song by Prince and a DMCA notice? The perfect recipe for a PR disaster and a copyright nightmare.
However, that is exactly the pot that was stirred this past June when Universal Music Publishing Group (Universal) ordered a DMCA takedown notice of a 30-second clip of a dancing toddler. The reason? Prince’s “Let’s Go Crazy” was playing, albeit softly, in the background.
But what started out as a PR misstep and a copyright faux pas has grown into one of the most important ongoing copyright cases for bloggers to follow. Though much of the case seems simple, if it goes all the way to a courtroom, it could address issues of fair use, censorship and, perhaps most importantly, how much one’s content is really worth.
Stephanie Lenz is a professional editor from Gallitzin, Pennsylvania and is the mother of two small children. According to the complaint, in February of this year she and her children were playing in their kitchen when she videotaped a short clip of her youngest, an 18-month-old boy named Holden, dancing happily to the music in the background.
The next day, Lenz uploaded the video to Youtube in order “for her family and friends to enjoy”. For four months the video resided on Youtube without any incident until, sometime in early June, Universal filed a DMCA takedown notice against the video. The video was removed as per the notice.
Later in the month, Lenz filed a counter-notice to get the video restored. Though U.S. copyright law states that a work should be restored in within fourteen business days of a counter-notice being filed, allegedly the video remained down for approximately six weeks before being put back.
Sometime after receiving the notice, Lenz sought out and received help from the Electronic Frontier Foundation (EFF) and in July they filed suit against Universal claiming misrepresentation, interference with a contract (namely the contract between Lenz and Youtube) and declaratory relief of non-infringement.
The lawsuit seeks a declaratory judgment that the video is non-infringing, a injunction restraining Universal from filing further copyright complaints against the video and “damages according to proof” among other elements.
Where Things Are
This case is still very early on. Though Lenz and the EFF did file an amended complaint in August, mostly making minor changes to their original complaint, so far there has been no response from Universal and little forward motion on the case itself.
It seems likely that there is some level of negotiation going on behind the scenes and that there may be a settlement in this case before we see much more paperwork on it.
What’s At Stake
This case touches on several key areas of copyright law that bloggers need to be aware of.
First is the fair use issue and whether or not the video’s use of the song constituted it. Though it would seem almost certainly to be the case with this video, fair use can be a tricky area of law and strange decisions are not uncommon. I hesitate to write off even this use as a “guaranteed win”.
The second element is what constitutes a false takedown notice. Section 512 states that “Any person who knowingly materially misrepresents under this section that material or activity is infringing… shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer…”
However, what constitutes “materially misrepresents” is a bit confusing, especially when complicated legal questions such as fair use issues come into play. How should copyright holders respond to uses they don’t approve of that may have a fair use question? Should they file a DMCA notice? Should Universal have known in advance this was a fair use and, if so, how do we expect other rightsholders to know as well?
These issues could have a great deal of impact on bloggers not just filing DMCA notices, but in how they respond to them.
Finally, in a related question, we may see, in a small way, how much value the court places on our content and our free speech. From a financial standpoint, Lenz has lost nothing in this whole affair. She uploaded the video for free, was not making any profit from it and suffered no financial harm from the takedown, at least none that are apparent.
However, the suit still seeks unspecified damages and cites a breach on first amendment rights. But what kind of liability a company such as Universal faces for filing a false notice remains unclear. Though the question was answered to some degree in the Online Policy Group v. Diebold, Inc case back in 2004, in which Diebold agreed to pay $125,000 in damages and fees to critics who posted voting machine flaws on their site, this case is far less politically charged, is not about silencing criticism and could be the result of an honest mistake.
In short, this case might be a better bar for what to expect in a more normal false DMCA case.
What it Hinges On
The million dollar question is “What was Universal thinking when they filed the notice?”
Was it an accident? Was it a glitch in an automated system? Did Universal know that the video was likely non-infringing but still file? Who made the decision to file the notice? What was their motivation?
Since Universal has not filed an infringement suit or sought an injunction against Lenz in her use of the song, it is clear that they either don’t feel there was much of an infringement or that the infringement was not worth pursuing farther. Nonetheless, their motivations in filing the initial notice will determine much of where this case heads from here.
What is Likely to Happen
At this point in the case, there is little reason to believe that it will make it all of the way to trial or even a summary judgment. Even though the complaint requested a jury trial, that is generally just a formality.
Instead, it is likely that attorneys on both sides are working on a way to resolve this issue quickly and quietly. That is what good attorneys do, work to keep their clients out of court.
However, with a sympathetic plaintiff, precedent from the Diebold case, high ground on the fair use issues and so much at stake, I don’t expect Lenz or the EFF to settle easily. They are going to drive a hard bargain and I don’t expect Universal to get away as easily as Michael Crook did for his erroneous DMCA notices.
Expect to hear more from this case soon.
One of the frustrating elements of law is that, until a case goes before a judge and/or jury, there is no precedent. Though settlements can be useful in analyzing future cases, they don’t carry as much weight or as much impact.
However, the vast majority of legal disputes never make it to a trial. They are handled in closed-door meetings where the results can be determined rather than taking a gamble on a judge or jury. It’s the safe route, it is the less-expensive route and it is the fastest route.
Though that is best for the parties involved in the dispute, it does very little to make things clearer for the rest of the world. Though I certainly do not hope that this case, or any case for that matter, makes it to trial, I have to lament the uncertainty a quick resolution leaves the rest of us with.
Though we would all like to avoid conflict, by resolving conflict we create clarity and my hope is that this case will not only bring us closer to some workable rules in this tricky area of the law, but also set some fair precedents that protect both users and copyright holders.
It is a delicate balance, but one that can definitely be struck.