Wednesday, March 23, 2016

Copyright Law & Dance: Can Mom Sue Music Copyright Holders Who Block Her YouTube Video Of Dancing Baby?


In Lenz v. Universal Music, 801 F.3d 1126 (9th Cir. Sept 14, 2015), the Ninth Circuit considered the question of whether a mother who posted a video on YouTube of Prince's "Lets Go Crazy" had the right to sue Universal Music because it took down her video without properly considering the issue of whether the video was fair use.   The Ninth Circuit Court of Appeals decided that mom had the right to sue and to collect at least nominal damages if the takedown was done without a proper consideration of the fair use doctrine.

This case has been around since 2007 and is truly iconic.   The video on YouTube was posted nine years ago and has been viewed over 1.8 million times.  You can follow Mom on Twitter @edenza

The case turns on the Digital Millenium Copyright Act ("DMCA"), 17 U.S.C. Section 512, which forbids a copyright owner to make a knowing misrepresentation in taking down content.  Below in italics is the court's discussion of the provision:

Section 512(c) permits service providers, e.g., YouTube or Google, to avoid copyright infringement liability for storing users' content if—among other requirements—the service provider “expeditiously” removes or disables access to the content after receiving notification from a copyright holder that the content is infringing. 17 U.S.C. § 512(c). Section 512(c)(3)(A) sets forth the elements that such a “takedown notification” must contain. These elements include identification of the copyrighted work, identification of the allegedly infringing material, and, critically, a statement that the copyright holder believes in good faith the infringing material “is not authorized by the copyright owner, its agent, or the law.” Id. § 512(c)(3)(A). The procedures outlined in § 512(c) are referred to as the DMCA's “takedown procedures.”
To avoid liability for disabling or removing content, the service provider must notify the user of the takedown. Id. § 512(g)(1)-(2). The user then has the option of restoring the content by sending a counter-notification, which must include a statement of “good faith belief that the material was removed or disabled as a result of mistake or misidentification....” Id. § 512(g)(3)(C). Upon receipt of a valid counter-notification, the service provider must inform the copyright holder of the counter-notification and restore the content within “not less than 10, nor more than 14, business days,” unless the service provider receives notice that the copyright holder has filed a lawsuit against the user seeking to restrain the user's infringing behavior. Id. § 512(g)(2)(B)-(C). The procedures outlined in § 512(g) are referred to as the DMCA's “put-back procedures.”
If an entity abuses the DMCA, it may be subject to liability under § 512(f). That section provides: “Any person who knowingly materially misrepresents under this section—(1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages....” Id. § 512(f). Subsection (1) generally applies to copyright holders and subsection (2) generally applies to users.

Lenz v Universal Music Corp., 801 F3d 1126, 1131 [9th Cir 2015] op amended and superseded on denial of reh, 13-16106, 2016 WL 1056082 [9th Cir Mar. 17, 2016]

The reason that the case is interesting is that it recognizes a tort in a wrongful takedown.  The Ninth Circuit analogizes 17 U.S.C. 512(f) to a case brought under 42 U.S.C. 1983.  This case is a long way towards giving First Amendment recognition to free expression via video on sharing services such as YouTube.

The Ninth Circuit amended its decision, a good discussion here and Techdirt's take here.

I commend watching the video of the oral argument (YouTube embed below).  When Judge Smith asks Universal's lawyer if he has children or how anyone could doubt that the dancing child was fair use, we have a strong sense of where the case is going.

Fair use is an exception to the copyright law and is codified at 17 U.S.C. 107.   This case is a wakeup call to the music industry in particular, and copyright trolls in general, that there may be a downside to over-aggressive enforcement of copyrights.

My book Copyright Litigation Handbook (Thomson Reuters 2015-2016) discusses the fair use doctrine and how it arises in the context of copyright infringement and takedown actions.

The court found that mom could potentially get nominal damages, but left the important question of whether she would be able to recover attorneys fees for a later date.  As in the context of 42 U.S.C. 1983 which is an action against a governmental actor for violating constitutional rights, the reality is that if folks who have their rights infringed can't find lawyers to fight for them, their rights will be illusory.

Anyone who cares about free speech and free expression on the internet should care about whether mom can share the video of her baby dancing.

For more on copyright law, choreography and The Lawnmower Dance, check out my last post here.
 Copyright law, fine art and navigating the courts. All practice, no theory.Copyright Litigation Handbook (Thomson Reuters Westlaw 2015-2016) by Raymond J. Dowd
 Copyright Litigation Handbook on Westlaw

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