Free for a Fee

This afternoon, a San Jose federal judge cleared the way for the Electronic Frontier Foundation’s YouTube “dancing baby” lawsuit, Lenz v. Universal, to move forward. The case has been underway for about a year, and defendant Universal Music has twice tried to have the case dismissed; today the company failed definitively. Lenz, represented by lawyers from EFF, will be allowed to prosecute the case.

It started like this: the plaintiff, Stephanie Lenz, posted a 29-second video of her son Holden (at right) dancing to the Prince song “Let’s Go Crazy.” Universal Music sent her a takedown notice; Lenz shot back an email complaining about the takedown; she contacted EFF; her video went back up; she sued anyway. EFF and Lenz are seeking a declaration that she does not infringe copyright, and most importantly, damages under section 512(f) of the Digital Millennium Copyright Act.

Reading the EFF lawsuit and press release it’s easy to forget that EFF actually initiated the litigation. What damages exactly did Lenz suffer?

“Lenz’s access to YouTube’s services was interrupted by Universal’s conduct,” wrote EFF attorney Corynne McSherry. “First, she was deprived of YouTube’s video hosting services for the Holden video for six weeks. While YouTube provides storage for video files and the bandwidth needed to transfer such files at no cost to users, comparable replacement services can add up to .00 per month.” [Opposition to Motion to Dismiss, PDF]

So right there you’ve got almost… . But, you can be sure, EFF is going to ask for a lot more than that. They argue that Universal also “chilled her First Amendment-based right to fair use of ‘Let’s Go Crazy’ and “the loss of First Amendment freedoms, for even minimal periods of time, harms Lenz.” (Lenz’s EFF lawyer refused to go into details about her alleged damages at oral argument, according to the judge’s order, “for reasons of privilege.” Hmm.)

The rhetoric here is all free speech. But behind the principles, there are tactics. Winning section 512(f) in a classic copyright takedown case would be a significant win for EFF and its campaign to make more room for fair use online. EFF won 512(f) damages in a case involving Diebold some years back, but that was a very different set of facts. If the group gets damages here, copyright holders will think twice before sending a takedown notice; a good thing from EFF’s point of view.

For an advocacy group like EFF, the Lenz case must be just about perfect, from a PR perspective. The world’s biggest record company is being forced into litigation with a video that’s clearly the YouTube age equivalent of Mom-and-apple-pie. (Has fair use ever looked so cute?)

A copyright holder must “knowingly materially misrepresent” to be liable for 512(f) damages, and EFF argues that Lenz’s short video is so obviously fair use that its takedown notice is actually a misrepresentation. Universal knew or should have known that the scratchy sound on Lenz’s video is fair use, says EFF; Indeed, the Dancing Baby video is “self-evident fair use.”

Self-evident fair use? “There is no such thing,” wrote Universal’s lawyer, Kelly Klaus at Munger, Tolles & Olson. Fair use is merely an affirmative defense, only to be used in court, and can only be successful after an “intense equitable balancing of multiple factors.” [Motion to Dismiss, PDF]

(and if the judge should inexplicably happen to decide that there is such a thing as self-evident fair use… well, then see Argument No. 2, “Universal couldn’t actually know what fair use is in this case” and/or Argument No. 3, “That wasn’t really a take-down notice, it was just a polite little letter pursuant to YouTube’s terms of use.” Ahh, litigation.)

So does a copyright holder have to think about the fair use doctrine when they’re writing up a takedown request? Indeed they do, said Judge Fogel in today’s Order [PDF]. He notes that no published case has decided whether fair use is “authorized by law,” as EFF argues, or merely an excused infringement. But “even if Universal is correct that fair use only excuses infringement, the fact remains that fair use is a lawful use of copyright.” Fogel writes:

Undoubtedly, some evaluations of fair use will be more complicated than others. 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.

So the lawsuit moves on. But Fogel expressed skepticism about Lenz’s claims regarding Universal’s bad faith. In their brief, EFF lawyers wrote that that Universal acted to promote Prince’s personal agenda and to appease Prince, an artist they called “notorious for his efforts to control all uses of his material on and off the Internet.”

“The Court has considerable doubt that Lenz will be able to prove that Universal acted with the subjective bad faith required by Rossi, and following discovery her claims well may be appropriate for summary judgment,” wrote Fogel. But Lenz has at least stated a legitimate claim under the DMC, even though her damages “may be nominal.”

Motion to Dismiss denied. More case documents available from EFF’s Lenz v. Universal page.

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