02-10-08

Takedown Notices Should First Consider "Fair Use" The US District Court of Northern California has ruled that a rightsholder must first consider the possibility of a "fair use" defence before requesting removal of material with a takedown notice. In Stephanie Lenz v Universal Music Corp (and Universal Publishing) [2007] No C07-3783 JF (filed 20 August 2008), the US District Court of Northern California denied Universal's request to dismiss Ms Lenz' claim against Universal of misrepresentation and confirmed that Ms Lenz has a viable case against Universal for improperly issuing a takedown notice. In early 2007, Ms Lenz posted onto YouTube her home-made video (with "poor sound quality") of her young children dancing to 20 seconds of the track "Let's Go Crazy" by Prince - in which Universal owns the copyright. In the video, Ms Lenz can be heard asking her child "what do you think of the music?" In June, Universal sent YouTube a takedown notice (under the US' Digital Millennium Copyright Act) demanding removal of the video because of copyright violation and YouTube quickly complied. Lenz then sent YouTube a counter-notification asserting "fair use" of the song and demanding re-posting - with which, six weeks later, YouTube complied. The US "Fair Use" defence is similar to the UK's "Fair Dealing", though the US version relies on the statutory "four factors" of: (1) purpose and character of the use; (2) nature of the original work; (3) amount and substantiality of the use; and (4) effect of the use on the value of the original work. Lenz claims that Universal issued their initial takedown notice "only to appease Prince because Prince is notorious for his efforts to control all uses of his material on and off the Internet" and claims that the notice was sent only "as a matter of principle" without "any good-faith belief that [use of the music in her video] actually infringed a copyright". Lenz sued Universal for misrepresentation and for "tortuous interference" with her contract with YouTube. There was no dispute that Lenz used copyrighted material belonging to Universal in her video but Lenz argued that her "fair use" constituted an authorised use of the material. Universal argued that copyright owners should not be required to consider the question of "fair use" in every case, as this would remove rightsholders' ability to respond rapidly to potential infringements - not least because "fair use" is difficult to evaluate and requires a "fact-intensive inquiry". The court said, whilst Universal's concerns were understandable, "their actual impact likely is overstated" and "in the majority of cases, a consideration of fair use prior to issuing a takedown notice will not be so complicated as to jeopardize" the ability to respond rapidly. The court said Universal had "acted solely to satisfy Prince" - an accusation not often aimed at a record company - but the court also had "considerable doubt" as to whether Lenz would actually prevail if and when this case ever comes to full trial. The court further noted that, even if Lenz were to ultimately win, her negligible loss would result in no more than nominal damages. This case highlights legal attempts to temper the potential "chilling effect" of takedown notices, as well as the struggle to balance rights of copyright owners against what this court called the "efficiency…variety and quality of services" on the Internet but "without compromising the movies, music, software and literary works that are the fruit of American creative genius". What the court did not address in this initial judgment was the investment made by Universal in the fruits of this particular creative genius - and the need to protect such investment and police the electronic "Wild West" without extra (and perhaps unnecessary) costs of investigation and evaluation.
Article by Tom Frederikse