Universal Music Likely Headed to Trial Over YouTube Takedown


Coming off the biggest year of his career, the Artist Then Still Known as Prince was nominated for 10 AMAs in 1985. He only won two, but he and the Revolution wiped out the room with a ferocious version of "Purple Rain."

Takedowns of videos posted to user-generated websites like YouTube continue to set off fire alarms across the Internet. Copyright owners don't always get things right when causing an ISP to remove works they deem to be infringements of rights.

On Thursday, a California judge addressed the issue in a long-running dispute.

The closely followed case involves Stephanie Lenz, who uploaded a 29-second video clip of her toddler dancing to the 1984 Prince hit "Let's Go Crazy." After the video was posted, Universal Music sent a takedown request, only to encounter outrage for removing a video where Prince's music was merely playing in the background.

Represented by the Electronic Frontier Foundation, Lenz sued Universal in 2007 for allegedly sending a meritless takedown request without good faith. Two years later, she experienced a big win when U.S. District Court Judge Jeremy Fogel decided that copyright holders must consider "fair use" before sending takedown notices.

But that didn't end the case because the lawsuit still had to decide whether the takedown was applicable to the Digital Millennium Copyright Act, whether Universal had or hadn't considered fair use and what damages, if any, Lenz would score for her injury.

The first issue entailed arguments over what Universal had agreed to when using YouTube's takedown system and probably is of interest only to lawyers, so we'll refer those who are interested in those arguments and what the judge has to say to the ruling itself. (Read the ruling here.)

As to the issue of whether Universal considered fair use prior to sending a takedown notice, the company argued that while its employee hadn't considered fair use per se, this individual had testified that he had put the video on his removal list because the video was titled "Let's Go Crazy #1," he recognized the song "right off the bat," the song was loud and played throughout the video, and the child in the video was asked whether he liked the music.

In short, Universal asserted that its employee had considered stuff that addressed the factors (like the amount and substantiality of the use of the copyrighted work) in a fair use analysis.

In turn, Lenz's attorneys flipped the typical copyright script by arguing that Universal had "willfully blinded" itself to a fair use that was so blatantly obvious.

Fogel wasn't ready to accept either of those positions on summary judgment.

Of Universal's arguments, he observed, "While it agrees 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, the Court disagrees that it is sufficient for a copyright holder to consider facts that might be relevant to a fair use analysis without making any effort to evaluate the significance of such facts in the context of the doctrine itself."

On Lenz's arguments, he sets the stage for a jury trial: "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. Universal likewise is free to argue that whatever the alleged shortcomings of its review process might have been, it did not act with the subjective intent required by §512(f)."

As to the issue of damages, Universal mostly scored a win. The judge concluded that Lenz can't demonstrate damages based upon the loss of YouTube's hosting services (provided to her for free) or the chilling of her free speech. She might be able to recover some small money for the time and resources she spent attempting to have her video reinstated. And her lawyers at EFF can recover money even though they've been working pro bono.

But the plaintiff's attorneys have indicated in the past that the dispute was never so much about money but rather principle, so it would be wise to expect this one to actually see a trial.

Email: eriq.gardner@thr.com; Twitter: @eriqgardner