Dancing Baby Video Fight Heads Back To Court: Will A Bogus Takedown Finally Get Punished?

from the that-would-be-quite-a-thing dept

Yesterday, our most popular post involved a story of a questionable DMCA takedown notice leading to the shutdown of 1.5 million sites. This was not a first. We've written numerous times about bogus DMCA notices and the damage they can cause by censoring works without an adversarial hearing first. And one thing that always comes up is the question of whether or not there's punishment for bogus DMCA takedowns. In general, the answer has been no. There may be a few very specific circumstances under which whoever signed off on a bogus DMCA notice could be charged with perjury, but the specifics there are quite limited.

Now, one of the more famous cases concerning bogus DMCA takedowns -- which started all the way back in 2007 -- is heading back to court today, to see if Universal Music can be punished for issuing a bogus takedown on a woman, Stephanie Lenz, for posting a 30-second video of her toddler son dancing to Prince's "Let's Go Crazy." If you haven't seen the video, the song is barely audible, and the whole thing is a 29-second clip. There is a strong fair use argument.
The case has been taking the slow route through the court system, with Lenz (and the EFF) suing Universal Music for taking down the video without considering the possibility of fair use. Universal claimed that fair use is merely a defense, and thus there is no obligation to consider fair use first. The court, thankfully, disagreed, and said that damages were available, but quite limited.

And now... the arguments are kicking off over whether or not Universal Music should get in trouble for its actions. UMG, for its part, argues that it shouldn't have to run everything through a fair use filter first, and that even if it was required to do so, it probably couldn't. EFF points out the ridiculousness of saying there are no consequences to bogus tweets.
"Parents are allowed to document and share moments of their children's lives on a forum like YouTube, and they shouldn't have to worry if those moments happen to include some background music," said [EFF IP Director Corynne] McSherry. "Content companies need to be held accountable when their heavy-handed tactics squash fair use rights. We hope the judge gives Ms. Lenz the closure she deserves, and shows content owners they can't trample over users' rights."
My guess is that the court won't punish UMG, arguing that it did all it needed to do. But it would be nice to actually put some teeth into rules that prevent abusing the DMCA to silence others' speech illegally.

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  1. icon
    Karl (profile), 17 Oct 2012 @ 12:22am

    Re: Re:

    The court makes clear that the test is subjective bad faith.

    That's not quite true, or at least, it's not the full story:
    [I]n order for a copyright owner to proceed under the DMCA with "a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law," the owner must evaluate whether the material makes fair use of the copyright. An allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim pursuant to Section 512(f) of the DMCA.

    Failing to take fair use into consideration is enough to show that the copyright owner "acted in bad faith." That consideration is certainly subjective; and as long as that subjective belief is that it is not fair use, they should not be liable under 512(f).

    But they must at least make that determination. For example, a "subjective belief" that the material is not authorized by the copyright holder is not sufficient.

    Considering the fact that UMG has shown that they had a human consider the fair use argument--twice--before taking down the material, I don't see how they could possibly be found to be in subjective bad faith. So it's not just a "big hurdle to jump," the claim against UMG is just not supported by the facts.

    I don't believe that's what happened.

    Sean Johnson, the human who viewed the content (twice), did not explicitly consider fair use. He merely followed a set of "rules" for taking down the content (like checking off boxes in a form). UMG is arguing that merely following the rules means that fair use was considered.

    I excpect the issue will be whether UMG's rules were drafted with a consideration of fair use in mind. It is here where UMG might be in trouble. UMG clearly did not consider fair use when deterimining whether a use is authorized by law (rather than UMG or Prince himself) - according to their own deposition, the only thing they considered was compulsory licensing. The rules that Johnson followed appear to have been set up only to determine if the use would be subject to synchronization royalties. That's just a guess, because the text from the Johnson declaration (as well as those of Allen, Klaus, and Moffat) has been redacted.

    But at the end of the day, I doubt Lenz will win. Even though fair use was not explicitly considered, the determination of whether a video is subject to synch licensing could incidentally be enough for a fair use determination. I expect that the judge will rule that it was.

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