Commentary
Universal Music And Digital Rights Group Continue 'Dancing Baby' Battle
- by Wendy Davis , Staff Writer @wendyndavis, December 9, 2013
The dispute dates to 2007, when Stephanie Lenz posted a 29-second clip of her toddler dancing while Prince's “Let's Go Crazy” played in the background. Universal Music sent YouTube a takedown notice that asserted the clip infringed copyright. Lenz said the video was protected by fair use principles. After around six weeks, Google agreed and restored the clip.
Lenz later sued Universal, arguing that the Digital Millennium Copyright Act imposes liability on companies that knowingly send improper takedown notices. Lenz and Universal both contended that they were entitled to win the case without a trial.
Earlier this year in San Jose, Calif., U.S. District Court Judge Jeremy Fogel rejected both sides' arguments and ruled that the dispute presented factual issues that can only be decided by a trial.
Now, both Universal and Lenz have appealed to the 9th Circuit. Each side says it was entitled to win without a trial.
Universal argues that it can't be found liable because it didn't knowingly send a wrongful takedown notice. “A copyright owner ... has not knowingly misrepresented that a use is infringing by failing to consider fair use,” the company argues. “The most that can be said is that a copyright owner acted negligently in sending the notice without considering fair use.”
For her part, Lenz says that Universal acted in bad faith because it sent a takedown notice without considering whether the clip was protected by fair use. “Universal had all the facts it needed to determine that that Ms. Lenz’s use was lawful, if only it had bothered to consider the issue,” Lenz's lawyers from the digital rights group Electronic Frontier Foundation argue in court papers filed on Friday.
If Lenz prevails on appeal, the ruling could spur entertainment companies to proceed with caution before sending takedown notices. After all, figuring out whether a clip includes copyrighted music or film doesn't require a great deal of judgment. But determining whether the clip makes fair use of the material often takes more thought.
Fogel's ruling earlier this year also limited the damages that Lenz can potentially recover: Even if she wins, she can only be reimbursed for legal bills related to fighting the original takedown notice -- which don't amount to very much. Fogel rejected Lenz's theory that she was entitled to damages because her "freedom to express herself through video had been restricted." He ruled that people can only recover damages when the government -- not a private company -- acts in a way that chills free speech.
Some legal experts said that ruling makes it extremely unlikely that other people will sue over wrongful takedown notices; doing so simply won't be worth anyone's time.
Lenz is now asking the 9th Circuit to also reverse that portion of Fogel's ruling. The EFF argues that Lenz is entitled to compensation for Universal's alleged infringement of her ability to express herself online. “Ms. Lenz is not arguing that Universal 'violated' the First Amendment, because the First Amendment by its terms applies only to state action,” her lawyers argue in their appellate papers. “Ms. Lenz simply notes that the right to speak unquestionably has value -- that is precisely why the Constitution prohibits Congress from making any law abridging freedom of speech.”
Wendy Davis is a Senior Writer at MediaPost. You can reach Wendy at wdavis@mediapost.com
We should all hope that Lenz prevails, since the so-called "chilling effect" that results from perceived threats of legal action by deep-pocket entities is very real. Coincidently, I received a call today from a friend who is publishing a book about a recent major sports event, which I happened to photograph. The friend apologized for not using my photos, due only to the fact that he and his publishers were afraid of a legal challenge from the event promoters, who insisted that the book use only their own "official" photos. Even though the photos I shot were legally protected, and the preferred choice for the book, the implied threat of a legal challenge and the cost of a defense was enough to scare them off.
Interesting case with huge impact potential either way. The reality is that people are increasingly going to create content out of whatever they can get their hands on as digital tools make it easy. Brands are going to have to decide, do I want people engaging with my content/brand or not. If they trust that most consumers that use their content do so because they relate to the brand and the most sincere form of flattery is creation, then they should benefit.
If they build a wall of protection because someone might do something they don't like, they will probably become irrelevant over time.
Whatever the outcome of this case, I doubt it will affect consumer behavior very much. People can and will do whatever they want with digital media.