Court Says Trial Needed To Determine If Universal Music Violated DMCA With Dancing Baby Takedown
from the can-you-punish-false-takedowns dept
We've covered the Stephanie Lenz / dancing baby / fair use case for years -- but now it looks like there's finally going to be a trial to consider if Universal Music can be punished for sending a DMCA takedown notice on a video of Lenz's infant son dancing to 29 seconds of a song by Prince, which Lenz asserts was clearly fair use. If you haven't followed the case, it's been argued back and forth for years. At one point, the court ruled that a copyright holder does need to take fair use into account before sending a DMCA takedown, but that there needs to be "subjective bad faith" by Universal Music in sending the takedown. In other words, Lenz (and the EFF, who is representing her) needs to show, effectively, that Universal knew that it was sending bogus takedowns. The EFF has argued that willful blindness by Universal meant that it had knowledge (amusingly, using precedents in copyright cases in the other direction, where copyright holders argue that willful blindness can be infringement).There are a few other issues being fought over -- including Universal Music's contention that the DMCA doesn't apply at all here (both because it insists it wasn't really sending a DMCA takedown, even as YouTube required a DMCA takedown, and because it's arguing that YouTube itself doesn't qualify for the DMCA because it helps process videos -- an argument courts have rejected repeatedly). However, Universal also sought summary judgment on the fair use issue in the other direction, arguing that it is clear that Universal did not have "subjective bad faith" in issuing the takedown, since it believed the takedown to be legit (and still does...). The judge has rejected both arguments for summary judgment, saying that there are disputed facts that need to have a full trial -- in part because Lenz failed to show any evidence that Universal had reason to believe that there was a high probability that some of the videos it was taking down would be covered by fair use. This point is necessary if Lenz is going to demonstrate willful blindness.
Lenz does not present evidence suggesting that Universal subjectively believed either that there was a high probability that any given video might make fair use of a Prince composition or that her video in particular made fair use of Prince's song "Let's Go Crazy." Lenz argues that her video was "self-evident" fair use and that Universal must have known it constituted fair use when it sent the Takedown Notice. However, as the Ninth Circuit recently has observed, the process of making a fair use determination "is neither a mechanistic exercise nor a gestalt undertaking, but a considered legal judgment." .... A legal conclusion that fair use was "self-evident" necessarily would rest upon an objective measure rather than the subjective standard required by Rossi. Indeed, Universal presents evidence that Lenz herself initially did not view her claim as involving fair use....In other words, this case, which has gone on for years, is going to continue for even more time as a full trial is about to happen.
Accordingly, the Court concludes that Lenz is not entitled to summary judgment based on the theory that Universal willfully blinded itself to the possibility that her video constituted fair use of Prince's song. Nor is Universal entitled to summary judgment, as it has not shown that it lacked a subjective belief that there was a high probability that any given video might make fair use of a Prince composition. Lenz is free to argue that a reasonable actor in Universal's position would have understood that fair use was "self-evident," and that this circumstance is evidence of Universal's alleged willful blindness. Universal likewise is free to argue that whatever the alleged shortcomings of its review process might have been, it did not act with the subjective intent required by §512(f).
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: dancing baby, dmca, lenz, stephanie lenz, takedowns
Companies: universal music
Reader Comments
Subscribe: RSS
View by: Time | Thread
In other words, ...
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
Bogus DMCA takedowns should have more stick, but alas that would require congress to do something constitutional.
[ link to this | view in chronology ]
Re: Re:
What ever happened to those activist judges legislating from the bench - oh yeah, that song and dance is just rhetoric. When two laws contradict each other, which happens a lot, it is up to the judge to figure out how to rule in that particular case? I doubt the judge needs to wait for congress to get off their fat asses and actually do something before a ruling can be made, because then the court system would really get backed up.
[ link to this | view in chronology ]
Re:
Studio abuses DMCA and unfairly takes down video that was clearly fair use, studio fined $2, cost to family incalculable.
Yep, that sounds about right!
/sarcasm
Someone really needs to hit the reset button, who will help me, I can't do it alone.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re:
thus the state of the current economy.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
LITIGATE! LITIGATE! LITIGATE!
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
* any parents
* anyone who has ever taken home videos
* anyone who has ever watched any amateur video's on youtube
* anyone who doesn't think babies dancing to music is "awwwwww such a cutie"
* Anyone who has Ever sung "happy Birthday" (EFF would be silly not to use that example in the trial of reprehensible copyright )
* Anyone who is younger than 25
* Anyone who has Grandkids
I have a suspicion that Universal might settle before any trial since whether they win the trial or not the PR and ripple effect of customers will be massive.
Not to mention if they lose the trial the animosity from content owners who will then actually have to do some due diligence before they send automated DMCA's will be huge.
[ link to this | view in chronology ]
The cure to all this nonsense
[ link to this | view in chronology ]
Re: The cure to all this nonsense
They want people to think that fair use needs to be litigated, as the the idea of having to litigate will prevent most fair use, and prevent challenges to their take-downs. If they actually had to consider fair use, their automatic detection systems become useless, as they would need to employ too many people to check the uses detected.
[ link to this | view in chronology ]
Really?
That's a real incentive to make sure you have your top people on it, huh? Isn't bought-and-paid-for law so even-handed?
[ link to this | view in chronology ]
Re: Really?
One thing that should come out of this the next time they sue some kid for downloading songs - there is absolutely no way that kid or his parents would actually be aware of the fines that will be imposed because they are so incomparable to the offence that the rational brain doesn't actually associate them.
It would be like thinking - if I take this candy bar the army will come by and shoot me and my family. It is so out of whack as to be completely incomprehensible.
That is what it feels like there are doing with all this crap. Sending the army to deal with a kid who stole some rich douche's candy.
[ link to this | view in chronology ]
Re: Re: Really?
[ link to this | view in chronology ]
Video anyone?
[ link to this | view in chronology ]
Re: Video anyone?
http://www.youtube.com/watch?v=N1KfJHFWlhQ
[ link to this | view in chronology ]