A collection of music companies will continue to defend themselves
against a mother who was once accused of copyright infringement after she
posted a YouTube video of her children dancing to a Prince song.
A California federal court refused to grant Universal Music
Corporation, Universal Music Publishing,
Inc., and Universal Music Publishing Group (collectively, Universal) summary judgment
with respect to Stephanie Lenz's claim of misrepresentation under 17
U.S.C. § 512(f) of the Digital Millennium Copyright Act (DMCA). Lenz v. Universal Music Corp., 2013 U.S.
Dist. LEXIS 9799 (N.D. Cal. Jan. 24, 2013) [enhanced version available to lexis.com subscribers]
The court initially agreed that requiring a copyright holder
to engage in a full-blown fair use analysis prior to sending a DMCA takedown
notice would be inconsistent with the remedial purposes of the statute. However,
in considering facts that might be relevant to a fair use analysis, the
copyright holder had to make some effort to evaluate the significance of such
facts in the context of the doctrine itself.
"Because the question of whether something constitutes fair
use is a 'legal judgment,"" the court said, "proper consideration of the
doctrine must include at least some analysis of the legal import of the facts."
In 2007, Universal sent a Takedown Notice to YouTube,
requesting the removal of a twenty-nine second video featuring Lenz's young
children and Prince's song "Let's Go Crazy." After YouTube restored the video
to its site, Lenz sued Universal for misrepresentation under the DMCA.
The evidence established that Universal issued its Takedown
Notice to Lenz without first considering fair use. Universal unsuccessfully
argued that while it had not considered fair use per se, it had considered a number of factors that would be
relevant to a fair use determination.
Lenz sought summary judgment based on Universal's failure to
consider fair use before sending the Takedown Notice. Lenz asserted that
Universal's procedures for evaluating copyright infringement were so deficient
that Universal willfully blinded itself as to whether any given video might
constitute fair use.
The court rejected Lenz's argument that her video was
"self-evident" fair use and that Universal must have known it
constituted fair use when it sent the Takedown Notice.
"A legal conclusion," the court said, "that fair use was 'self-evident'
necessarily would rest upon an objective measure rather than the subjective
standard required .... 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."
The court also concluded that Universal failed to establish
that Lenz was precluded from recovering "any"
damages for her DMCA claim.
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