What do a dancing baby, Prince, and the Digital Millennium Copyright Act have in common?  They’re all part of a lawsuit involving YouTube and a DMCA takedown notice.  About five years ago, Stephanie Lenz uploaded a video of her young son, dancing to Prince’s “Let’s Go Crazy.”  The clip was less than a minute long and had the song playing in the background.  Universal Music Group, Prince’s label, flagged the video with a DMCA takedown notice, claiming that the video infringed upon copyrights owned by the company.  YouTube reinstated the video two months later; however, Lenz claimed the damage was already done.

Lenz, backed by the Electronic Frontier Foundation (EFF), filed suit in 2007, arguing that the video represented a fair use of the song and that Universal’s takedown request was improper and an abuse of the DMCA.  In addition, Lenz claims that Universal demanded a DMCA takedown before adequately considering whether there actually was any copyright infringement, an action that is a violation of DMCA provisions.

The Digital Millennium Copyright Act was signed into law by President Clinton in 1998.  The law was created to offer copyright protection to content creators/owners in the digital world.  There is no bright-line rule defining fair use; however, the factors include how much of the original work was used, whether the new use is commercial in nature, whether the market for the original work was harmed, and whether the new work is a parody.

The judge overseeing the case, U.S. District Judge Jeremy Fogel, ruled, “Even if Universal is correct that fair use only excuses infringement, the fact remains that fair use is a lawful use of a copyright.”  Fogel went on to explain how, in order for a copyright claim to proceed under the DMCA, there must be a good faith belief that the use of the material complained of is not authorized by the copyright owner, and the owner must further evaluate whether the material constitutes fair use.

The EFF was looking for a case that was an obvious example of fair use so that they could force the content owner to pay damages under a little-used section of the DMCA (§ 512 (f)).  The EFF became interested in Lenz’s case after concern about Google’s search algorithm, which places sites that have higher rates of takedown notices lower in search results, even if the takedown notices are not warranted.  The high bar for relief under §512 (f) makes it difficult for Lenz and the EFF to recover damages.  They may be able to prove fair use – very little of the original work was used, the new use was not commercial in nature, and it is highly unlikely that the market for the original work was harmed by Lenz’s video.  However, the second part proves more difficult – EFF and Lenz will have to find a way to show that Universal Music Group did not have a good faith belief that the use of the Prince song was authorized and that Universal did not evaluate whether the material constituted fair use before reporting it.

Damages requested by the EFF and Lenz are minimal – compensation for ten hours of Lenz’s time, which was spent dealing with the takedown notice ($62.50) and compensation for the time the EFF attorneys spent advising her pre-suit ($1275), as limited by the judge’s opinion.  EFF is hoping that a favorable result will make a real deterrent for copyright holders who abuse the takedown process under §512(f).  While it is not immediately clear how a favorable result would help sites like YouTube prevent misuse of the takedown system, a victory for Lenz and the EFF would show others that they can successfully bring a lawsuit under §512 (f) and recover damages for an unwarranted takedown notice.

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