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Fair use gets a fair shake: YouTube tot to get day in court

A federal judge has refused to dismiss a lawsuit against Universal for its …

The saga of the copyright-infringing toddler continues as a California court refused to dismiss a lawsuit claiming that Universal Music had filed an improper takedown notice under the Digital Millennium Copyright Act. The DMCA provides a mechanism for copyright holders to demand the removal of infringing material on the web, but it also allows lawsuits against those who abuse that authority. Universal claims that it has no obligation to take fair use into account before sending its takedown notices, but Judge Jeremy Fogel rejected this argument—and with it, Universal's request to dismiss the lawsuit.

The case concerns Stephanie Lenz, a mother who filmed her young children dancing in their kitchen to the Prince song "Let's Go Crazy." She posted her video to YouTube for the enjoyment of family members, only to have the video removed due to a DMCA takedown notice from Universal. She filed a counter-notice stating that her video was non-infringing, and then with the assistance of the Electronic Frontier Foundation, sued Universal for sending a takedown notice over a video she says it should have known was non-infringing.

Lenz's argument was bolstered in September when Universal told ABC that it had issued that takedown notice at Prince's request, and that the request "has nothing to do with any particular video that uses his songs. It's simply a matter of principle." The quote might confirm Lenz's charge that Universal did not follow the DMCA's requirement that a copyright holder have "a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law."

Creative arguments

In seeking to dismiss the lawsuit, Universal made a number of creative arguments. The most important was its claim that fair use is such a complicated doctrine that it's unreasonable to expect Universal to consider it before sending out takedown notices. Universal also made the more audacious argument that because it had not admitted its takedown notice had misrepresented the copyright status of the video, it could not be proven that Universal had made a "knowing" misrepresentation, as the DMCA requires. Judge Fogel flatly rejected both arguments, writing that Universal's interpretation of the law would allow copyright holders to send bad-faith takedown notices on the flimsiest of pretexts.

Judge Fogel did not even bother to address another of Universal's arguments: that its takedown notice was not really a DMCA takedown notice because it included a disclaimer saying it wasn't. As EFF's reply brief noted, Universal's takedown request had followed the exact DMCA takedown procedure, and it had been sent to the YouTube e-mail address designated for DMCA takedown notices. Evidently, if it walks like a DMCA notice and quacks like a DMCA notice, it can be litigated as a DMCA notice despite what Universal wants to call it.

The judge also did not comment on Universal's argument that the video was not fair use because publishing videos of toddlers dancing to its music could undermine the market for licenses to make similar videos (Ars is not making this up). Universal argued that if Lenz's dancing toddler video were regarded as a fair use, it could result in "not only toddlers, but bands or other musical performers creating unauthorized derivative works and posting them to YouTube," harming the market for derivative works based on Prince songs.

As EFF pointed out in its reply brief, this argument is circular: any use of a copyrighted work can be said to undermine the market for licensing that use. While Judge Fogel didn't directly address this argument, he didn't seem to think it would be too hard to draw the necessary distinctions between a 29-second, low-quality home video of dancing toddlers and unauthorized commercial uses of Universal's music.

Universal struck out this time, but it will have plenty more at-bats before fair use fans can declare victory. Wednesday's decision allows the case to move forward, but it was not a ruling on the merits of Lenz's claims against Universal. Indeed, Judge Fogel wrote that he "has considerable doubt that Lenz will be able to prove that Universal acted with the subjective bad faith" the law requires.

In surviving Universal's motion to dismiss, Lenz and the EFF have won the right to obtain documents and interview witnesses from Universal in order to build their case. And after the case is decided, the losing party will almost certainly appeal. Holden, the exuberant toddler at the heart of the case, could easily start school before we'll know for certain whether Universal broke the law in demanding his video be taken down.

Further reading

  • You can check out the decision (PDF) on the EFF website

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