Commentary

Web Companies Take On Universal In 'Dancing Baby' Battle

Automattic, which owns the blogging platform WordPress.com, recently filed two lawsuits against groups that allegedly tried to censor bloggers by making bogus copyright infringement claims.

Apparently, those cases are just the tip of the iceberg. The company now says in new court papers that it frequently receives infringement complaints by businesses that want to make critical posts disappear. “Many times each week ... Automattic receives a takedown notice that appears motivated not by an interest in protecting copyright but a desire to improperly silence critics,” the company asserts. The blogging platform adds that it often receives takedown notices because bloggers have used businesses' logos in critical posts. “It is not objectively reasonable for the business to believe that such uses are not fair use,” the company writes.

These statements by Automattic appear in a friend-of-the-court brief, which the company filed in a battle between Universal Music and Stephanie Lenz, who once posted a 29-second clip of her toddler dancing while Prince's “Let's Go Crazy” played in the background. Automattic -- along with Google, Twitter and Tumblr -- argue in a joint brief that companies who send takedown notices must first consider whether the material is protected by fair use principles.

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WordPress and the other companies are supporting Lenz, who argues that Universal violated the Digital Millennium Copyright Act by asking YouTube to remove her clip without first taking into account whether it was protected by fair use. The DMCA imposes liability on companies that send improper notices, but courts are still struggling to figure out how to interpret that section of the law.

Earlier this year, U.S. District Court Judge Jeremy Fogel ruled that a jury should decide whether to hold Universal liable for the takedown notice. Lenz and Universal are appealing that ruling, with each side saying it was entitled to win without a trial.

Lenz argues that Universal shouldn't have 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 earlier this month.

For its part, Universal says 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.”

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. Fogel rejected Lenz's argument she was entitled to compensation for the restriction of her “freedom to express herself through video.” He ruled that people can only recover damages when the government -- not a private company -- chills free speech. Fogel also ruled that Lenz won't be entitled to reimbursement for her attorneys' fees if she wins. (The Electronic Frontier Foundation is representing Lenz for free, but says it should be able to recover attorneys' fees if it prevails.)

But WordPress and the other Web companies say that Universal should have to pay attorneys' fees if it loses. “Without an award of litigation costs, many users could not afford to bring a federal lawsuit to keep content online,” WordPress and the others argue. “Where the content taken down is noncommercial, including political or corporate criticism, the monetary damages at stake might be dwarfed by the costs of suit.”

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