Thankfully this is not a post about the Monkey Selfie case, which should have ended by now but has not. Instead it's about Lenz v. Universal, the Dancing Baby case, which shouldn't have come to an end yet, but has. This week the EFF announced that the case has been settled.
The problem though isn't that it the case has been settled. It had been remanded for trial, which would have been a long, expensive slog to not accomplish what the case really needed to accomplish: put teeth back into the Section 512(f) remedy that the DMCA is supposed to afford to deter illegitimate takedown demands. The problem is that the opportunity to provide that benefit was extinguished when the US Supreme Court denied cert and refused to review the Ninth Circuit's interpretation of that provision. So we'll be stuck with this precedent until another case can prompt another look by the court and the serious issue of censorship-via-takedown notice can finally get the judicial attention it deserves.
Maybe it will even be a case where a monkey has taken a video of himself dancing along to music, because the rights of monkeys have so far been a lot more successful in attracting en banc attention from the Ninth Circuit than the speech rights of people. And maybe it won't even take 10 years of litigation (that's 32 in monkey years) to find out.
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.
We had just been discussing a lawsuit in South Korea that appeared to be quite similar to the infamous Lenz case, in the US. If you don't recall, that case involved Universal Music issuing a DMCA takedown after a mother posted a 29-second video of her toddler dancing to the radio where a Prince song was playing. While Universal Music did not contest the counternotice of the woman, the woman (with the help of the EFF) sued Universal, claiming that it violated the DMCA in issuing a takedown on a video that was obviously fair use.
Universal claimed that since fair use is "just a defense" under the law, and not (technically) a "right," that it had no obligation to consider fair use before issuing a takedown. Thankfully, the judge disagreed. That wasn't everything, though, as this case has dragged on and on for years since then, as the EFF and Lenz sought to make Universal actually liable for damages for filing a bogus DMCA takedown. Earlier this year, the court ruled that damages were available, but quite limited.
The latest part of the case is that both sides have filed for summary judgment, with Lenz arguing that the takedown violated the law, since Universal did not believe in good faith that the video was infringing (as required by the law). Universal's motion, on the other hand, makes the argument that the 29-second video is not an obvious case of fair use. It still argues that there's no requirement to check for fair use first, but says that even if it's supposed to, this video was not obviously fair use.
Now, before we get into the reasons that Universal gives, it's worth looking at the video itself, so here you go:
Yeah, that's the video that Universal claims is not obviously fair use of that music you can barely hear in the background. Seriously. So, let's take a look at Universal Music's argument. You can read the full filing here, if you'd like (well, not the full filing, as parts are redacted):
Basically, the argument is that (a) Universal Music really did consider whether or not it was fair use, because they had some poor schlub working for them watch the video twice and decide that it wasn't fair use because the music is in most of the video and (b) that Lenz and her friends and lawyers did not initially consider it a fair use issue -- so if they didn't think it was a fair use case, then how could Universal Music? Specifically, it mocks the EFF, since the EFF is such a strong believer in fair use for apparently not immediately telling Lenz it was a fair use case. Admittedly, Lenz's suggestion that the EFF told her it wasn't fair use certainly doesn't look good for the "obvious fair use" claim.
From there, though, Universal goes on to make the argument that it did consider it, and it still doesn't seem to think the video is fair use. But its analysis here is really weak. It claims that this was a "commercial use," because it was posted on YouTube, a commercial site. But that's blaming the wrong party. It was not a commercial use for the person actually uploading the video, Ms. Lenz. Universal then argues that the video is not transformative, but again that doesn't make much sense to me. It's not as if this video's purpose is anything like the purpose of the original song. In terms of "the nature of the work," Universal says that because it's music, it's protected -- but that's only a part of the analysis. The video has the song in it, but it's not "the song." So it should be the nature of video that's analyzed, not the nature of the song. And the nature of the video is that it was a silly home video, obviously for personal, non-commercial use. As for "the amount of the work," again, Universal shifts what it looks at. It says since the song appears in the whole video, then it weighs against fair use. But, again, it's looking at the wrong thing. Here, the question is the amount of the original work, and in this case it's 29 seconds of a much longer song (something Universal ignores). Finally, the big one: the commercial impact of the video, much of Universal's reasoning is redacted, but it appears its argument is that Universal/Prince could sell the right to use the song in videos. That seems pretty weak. No one is going to pay for a song in a video like this.
Just the fact that we need to have a big legal fight over whether or not the video above is fair use is really sad. Any copyright law that doesn't immediately consider that kind of use fair use is broken. In the meantime, I'm curious if someone at Universal Music could enlighten us to what would be considered fair use in its mind?
We had discussed earlier this year just how damages should be figured out (and if they should be available at all) for bogus DMCA takedowns. The law, technically, says that there can be punishment, but it's rare to see a case ever get that far. In the ongoing Lenz v. Universal Music, however, (about the video takedown of a child dancing to less than 30 seconds of a Prince song), the judge has ruled that damages are available, but at the same time limited how those damages might be calculated. So, there's some good, in that filing bogus DMCA takedowns can lead to damages, but the amounts are likely to be so small in most cases as to be meaningless. Compare this, of course, with the statutory damages given to those who infringe on copyrights -- starting at $750 for sharing a single item and going way up from there. How is that equitable? Basically, the incentive is quite strong for copyright holders to continue to file DMCA's willy-nilly, knowing that the threat of errors is mostly minimal, even as the impact is to silence one's free speech -- which should be seen as a bigger issue than interfering with someone's business model.
