Judge affirms takedown notice recipients' right to sue

A two-year-old California boy may today be the hero of the digital age, as a Federal Judge ruled that the holder of the copyright to the song he was dancing to in a YouTube video, should have thought twice before suing his mommy.

When a copyright holder believes that a person uploading a file to a public site has infringed his rights, he must take into consideration whether that upload followed US law's definition of "fair use." And if that person is sent a takedown notice by the copyright holder, she has the right to challenge its assertions in court. That's the ruling of a US District Judge in San Jose yesterday.

Back in February 2007, Ms. Stephanie Lenz videotaped her little son wheeling a plastic cart around the family kitchen, and dancing to the music that happened to be playing during a Super Bowl halftime show. The artist was Prince, and the music was, "Let's Go Crazy." Sharing her delight with the world, she posted 26 seconds of her video to YouTube.

Four months later, YouTube sent Lenz a takedown notice, after having received a complaint from the rights holder to Prince's music, Universal Music Group. The video was temporarily taken down, but in the interim, Lenz sent YouTube a counter-notification, claiming she was within her rights under copyright law's fair use guidelines. YouTube sided with Lenz, reinstating her video.

In what was undoubtedly a clever PR move at the time, Universal took action, but not in a way that would make it appear that a massive media outlet took action against the mother of a two-year-old. Instead, rights holders acting on Prince's behalf took legal action against YouTube, in a manner that was so subtle that not even the thousands of blogs in the blogosphere, not the press, and not even television networks made the connection between the Prince lawsuit and the dancing baby video. "Prince Sues YouTube" was all over the net, covered in such a manner that it appeared the artist was simply in shock over finding his songs streamed everywhere without his personal permission.

But when the story was covered on TV by ABC News, Lenz noted that it was Universal Music that spoke for Prince's behalf -- a fact that became so critical to this case that District Judge Jeremy Fogel cited UMG's quote in his finding yesterday. Seeing through the smokescreen, Lenz sued UMG in July, with the help and backing of the Electronic Frontier Foundation. Her legal theory was tortious interference with her (unwritten) contract with YouTube: specifically, that UMG was using the law (tort) as a weapon against her right to post whatever YouTube believes she has a right to post.

When she used that theory the first time, Lenz' case was dismissed, but with an option to refile, and she did. Yesterday, Judge Fogel made it clear that Lenz had a viable theory the first time, and her arguments should not have been dismissed out-of-hand.

As Judge Fogel noted, UMG's defense centered around the notion that fair use, from a legal standpoint, applied to infringements of copyright that the law could excuse -- in other words, theft so minor that the law feels it's not worthwhile to pursue. But Lenz' counterargument struck down that contention, citing US code that clearly states, "the fair use of a copyrighted work...is not an infringement of copyright."

Fogel goes on to note that UMG argued that, if it had to consider the merits of fair use in every potential copyright infringement it investigated, they would not be able to respond to such infringements in due course -- implying they could tie up the entire court system.

"Undoubtedly, some evaluations of fair use will be more complicated than others," the judge wrote. "But in the majority of cases, a consideration of fair use prior to issuing a takedown notice will not be so complicated as to jeopardize a copyright owner's ability to respond rapidly to potential infringements. The DMCA already requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice; indeed, it would be impossible to meet any of the requirements of Section 512(c) without doing so. A consideration of the applicability of the fair use doctrine simply is part of that initial review."

Simply issuing an unnecessary takedown notice, according to Lenz' argument noted by the judge, can cause injury to the recipient because of the controversial nature of takedown notices themselves. Notice, for instance, that Stephanie Lenz and her little boy (we called him a girl in our original story, we're sorry) are now public figures, if only in a minor sense. UMG should have taken that into account before it started all this, the judge stated. As a result, the music rights holder may now actually owe Lenz damages, the amount of which (the judge warns it could be "nominal") is yet to be determined.

In a statement on the EFF's Web site late yesterday, staff attorney Corinne McSherry wrote, "Given the 'shoot first and ask questions later' approach some content owners take to the DMCA notice process, improper takedowns of non-infringing fair uses are all too common. We're very pleased that Judge Fogel has put content owners on notice: ignore fair use at your peril!"