Court Says Trial Needed To Determine If Universal Music Violated DMCA With Dancing Baby Takedown

from the can-you-punish-false-takedowns dept

Fri, Jan 25th 2013 2:00am — Mike Masnick

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....

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).

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.

LenzOrderDenyingMSJs (PDF)LenzOrderDenyingMSJs (Text)

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Filed Under: dancing baby, dmca, lenz, stephanie lenz, takedowns
Companies: universal music

32 Comments

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relghuar, 25 Jan 2013 @ 2:24am

In other words, ...
if you ever need a perfect example of a balanced copyright system in the US...
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Anonymous Coward, 25 Jan 2013 @ 2:27am

i would have liked to see Universal get really screwed here, but the judge has already said the payout will be almost non-existent. shame the courts never have the same attitude when the studios are demanding gazillions in compensation. shame also that a senator such as Lofgren or Issa doesn't try to do something to strengthen the weak part of the DMCA rules concerning punishments for false accusations and false take downs! think of the money the studios etc would lose, but also think of the number of piss taking cases that wouldn't happen as well
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PaulT (profile), 25 Jan 2013 @ 2:30am

Meanwhile, the shills will continue to tell us that copyright infringement is something obvious that Google's algorithms should be able to identify with 100% accuracy...
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Anonymous Coward, 25 Jan 2013 @ 2:31am

Re:
I would argue that a fine of $15m should be small enough to not be "excessive or arbitrary".
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Anonymous Coward, 25 Jan 2013 @ 2:32am

Re:
Unless I'm wrong, I don't remember them EVER explaining the Viacom fallacy.
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Zakida Paul (profile), 25 Jan 2013 @ 2:49am

Re:
That is the nature of the corporatist society we find ourselves living in. Justice is not for the pleb on the street, it is only for those who can afford to buy it.
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Anonymous Coward, 25 Jan 2013 @ 3:43am

I don't remember the beginning of this case, but if Universal had an automated system sending takedown notices, wouldn't that fit into the "willful blindness" theory in that Universal (or their agent) didn't actually review the video for fair use? (just spitballing here..)
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Anonymous Coward, 25 Jan 2013 @ 4:03am

Re:
It should, but then robo-signers were left pretty much alone when it came of false foreclosures and fraudulent ones were just thrown out.
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Anonymous Coward, 25 Jan 2013 @ 4:08am

Re:
The courts do not set award levels, that is done by congress and juries.
Bogus DMCA takedowns should have more stick, but alas that would require congress to do something constitutional.
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aiming4thevoid (profile), 25 Jan 2013 @ 4:13am

Did the judge really just open the door to the possibility that as long as the label claim that "fair use" is only a defense that must be argued in court post-'infringement' (which the judge reading of the Ninth Circuit ruling seems to support), they will never qualify under the standard of "subjective bad faith"? That's just great...
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Mr. Applegate, 25 Jan 2013 @ 4:16am

Re:
Poor dumb kid torrents 10 songs, family is fined $2 Million for infringement, cost to studio $2.

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.
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Anonymous Coward, 25 Jan 2013 @ 4:35am

Re: Re:
Maybe, then, this case might be a step on the road to ending the robo-signers?
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Anonymous Coward, 25 Jan 2013 @ 5:07am

Re: Re:
... and juries seem to be insane when it comes to amounts, which leads to a judge (court?) reducing said amount, which is still exorbitant, ridiculous and a slap in the face to those within its jurisdiction.

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.
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Anonymous Coward, 25 Jan 2013 @ 5:10am

Re: Re:
I'm sure they do not remember either
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Anonymous Coward, 25 Jan 2013 @ 5:18am

Re:
Oh, I'm sure that all dmca notices are reviewed by a real live human being, and certainly the follow up reply is also reviewed, thoroughly - as evidenced by the case where a wildlife video was taken down because the audio of a bird was copyright'd
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G Thompson (profile), 25 Jan 2013 @ 5:41am

I wonder how the voir dire is going to go in this case since Universal would not want:
* 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.
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Andrew (profile), 25 Jan 2013 @ 5:45am

Re:
Hey, maybe they believe that Google et al.'s algorithms are now so advanced they are capable of delivering "considered legal judgment(s)" on the fly (and therefore able to succeed pretty much all of the legal profession?).
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Anonymous Coward, 25 Jan 2013 @ 5:47am

The cure to all this nonsense
If every fair user filed for declaratory judgment before they did anything with the defendant's "intellectual property," the courts would suddenly find themselves seeing what is obviously fair use to avert a trial in every case to avoid being overwhelmed. Plus the defendant cannot assert damages since no use happened yet. Do you really think every copyright holder or mark holder wants to litigate each and every fair use, and have the court actually reach a verdict?
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Not an Electronic Rodent (profile), 25 Jan 2013 @ 5:56am

Really?

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).
IANAL so I may well be reading that wrong, but it seems to suggest that it might be a reasonable defense for universal to show that their review process is so crap at spotting fair use that it can't have been deliberate?
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?
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Not an Electronic Rodent (profile), 25 Jan 2013 @ 5:58am

Re: Re:
(and therefore able to succeed pretty much all of the legal profession?).
Y'know... the prospect of armies of scary mutant robot lawyers roaming the world aside, that might actually be better...
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xenomancer (profile), 25 Jan 2013 @ 6:58am

Re: Re:
It's the big red one in the middle of your desk. Unfortunately, you have to ram your head into it a few times before it will appear. Though, it is pretty small, so you'll have to press it with your little finger,
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Anonymous Coward, 25 Jan 2013 @ 7:00am

Re: The cure to all this nonsense
Do you really think every copyright holder or mark holder wants to litigate each and every fair use, and have the court actually reach a verdict?

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.
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xenomancer (profile), 25 Jan 2013 @ 7:02am

Re: Re: Re:
How could they? Recording such memories would be stealing from reality, and we all know such blatant theft must be punished!
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xenomancer (profile), 25 Jan 2013 @ 7:03am

Re: Re: Re:
Searching.... infringement found...
LITIGATE! LITIGATE! LITIGATE!
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Robert Doyle (profile), 25 Jan 2013 @ 7:30am

Re: Really?
We can't start punishing stupidity now can we...

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.
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sunk818 (profile), 25 Jan 2013 @ 9:07am

Video anyone?
Does anyone have a link or a download to the actual video in question?
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sunk818 (profile), 25 Jan 2013 @ 9:10am

Re: Video anyone?
Wow, wouldn't have putting a link to buy the song on iTunes or Amazon on the video itself been enough?

http://www.youtube.com/watch?v=N1KfJHFWlhQ
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Digitari, 25 Jan 2013 @ 9:46am

Re: Re:
you forgot the accounting of said funds, when investing in a new movies that 2 million will be used to "buy" the copyrights, yet, tax time, that same 2 million will be a write off because it has not been collected yet it's been spent...

thus the state of the current economy.
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Not an Electronic Rodent (profile), 25 Jan 2013 @ 9:46am

Re: Re: Really?
Sending the army to deal with a kid who stole some rich douche's candy.
Technically "Sending the army to deal with a kid who made some more candy exactly like the rich douche's" but I take your point...
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Digitari, 25 Jan 2013 @ 9:48am

Re: Re: Re:
movies should be music, sorry
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Anonymous Monkey (profile), 25 Jan 2013 @ 10:06am

Re: Re: Re: Re:
O_O
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MrWilson, 25 Jan 2013 @ 2:20pm

Re: Re:
Maybe this dystopian version of Google's algorithms should merge with their other projects. Self-driving cars drive you off a cliff to carry out a death sentence that the algorithms have determined is the appropriate form of justice while Google wallet drains your bank account for the civil penalties. If the IP maximalists could just turn Google to the dark side there could be so much dystopian win!
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