Serious YouTube test of copyright law
Bob Egelko, Chronicle Staff Writer
Saturday, July 19, 2008
A woman who posted a home video on YouTube of her 13-month-old son
dancing to Prince's "Let's Go Crazy" squared off Friday against
entertainment giant Universal Music Corp. in a federal court case that
tests copyright law.
The issue in Stephanie Lenz's lawsuit against Universal is whether the
owner of the rights to a creative work that's being used without
permission can order the Web host to remove it without first
considering whether the infringement was actually a legal fair use - a
small or innocuous replication that couldn't affect the market for the
original work.
Lenz's lawyers, from the Electronic Frontier Foundation, say her 29-
second video, with fuzzy camerawork and unclear sound, was such an
obvious noncommercial fair use that Universal should have to reimburse
her for the costs of taking it out of circulation for more than a
month last year.
The company's lawyers say the 1998 federal law that authorized
copyright-holders to issue takedown orders didn't require any such
inquiry - in fact, they argue, there's no such thing as an obvious
fair use.
No court has ever addressed the issue, said U.S. District Judge Jeremy
Fogel of San Jose, who is presiding over the case.
Lenz, a writer and editor from Gallitzin, Pa., used her digital camera
to take the video of her son, Holden, dancing to "Let's Go Crazy" on a
home CD player in February 2007, and she posted the file on YouTube
for family and friends, her lawyers said.
Four months later, Universal, which owns the rights to the song,
ordered YouTube to remove the video and nearly 200 others involving
compositions by Prince. Copyright owners gained that power under the
1998 Digital Millennium Copyright Act, which allows them to remove Web
postings that they believe to be unauthorized duplicates without
having to sue for infringement.
Lenz, exercising her rights under the same law, notified YouTube
several weeks later that her video is legal and ordered it restored.
YouTube complied after waiting two weeks, as required by law, to see
whether Universal would sue Lenz for copyright infringement - a suit
that would have allowed her to claim fair use as a defense. Lenz then
sued Universal in Northern California, YouTube's home district,
claiming the takedown order was an abuse of the copyright law.
"There must be some requirement that a copyright owner both consider
fair uses and determine honestly whether they exist before sending
their (takedown) notice," Lenz's lawyer, Corynne McSherry, said in
court papers. She said the video, which focuses on the toddler and
contains only a snippet of the song, couldn't have any conceivable
impact on the market Universal's copyright was meant to protect.
But Fogel, at Friday's hearing, said he was concerned that requiring
copyright holders to consider the possibility of fair use before
ordering a takedown puts judges in the business of "trying to read
their minds" and seems to be an expansion of the 1998 law.
Universal's lawyer, Kelly Klaus, argued that even brief homemade
videos have a potential commercial effect if they proliferate on a
site like YouTube and that Lenz's posting flies in the face of the
1998 law, which allows copyright holders to order removal of work
believed to be an infringement.
Fogel observed, however, that the law is "intended to prevent misuse
of takedown notices."
The Lenz video can be viewed at links.sfgate.com/ZEGD.
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/07/18/BUDH11RKQ9.DTL
*************
Mom fights music giant
S.J. COURT CONSIDERS KEY COPYRIGHT CASE
By Howard Mintz
Mercury News
Article Launched: 07/19/2008 01:33:24 AM PDT
For Pennsylvania mom Stephanie Lenz, a closely watched copyright
showdown in San Jose federal court is a simple matter of standing up
to powerful music moguls and petulant pop stars.
"I figure I have nothing to lose," Lenz said Friday in a telephone
interview with the Mercury News. "The music companies are just going
to keep doing this to people. I think it's my responsibility to stand
up to them and say, 'That's enough.' "
Lenz, whose case reached a critical stage Friday, finds herself at the
heart of an epic copyright fight over Universal Music's attempt to
force her to take down a YouTube video of her toddler learning to walk
with the Prince song "Let's Go Crazy" blaring in the background.
Calling it a "case of first impression," U.S. District Judge Jeremy
Fogel on Friday considered Universal's attempt to dismiss Lenz's
lawsuit, which maintains the media giant and Prince are abusing a 10-
year-old copyright law intended to curtail movie and music thievery on
the Web. Lenz is seeking unspecified damages and a court finding that
she did not violate Universal's copyrights with the YouTube video.
'Takedown' letters
The case centers on a so-called "takedown" letter Universal sent to
Lenz after she posted the video in February 2007. Music and movie
companies send tens of thousands of such letters under the copyright
law each year, essentially forcing the material to be at least
tem****arily removed unless
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the target fights the request.
Lenz fought back hard, backed by the Electronic Frontier Foundation, a
San Francisco-based civil liberties organization. She maintains that
the video was a harmless, legal use of a popular song, and that her
case exemplifies how a powerful industry can abuse the copyright law,
known as the Digital Millennium Copyright Act.
Fogel dismissed a previous version of Lenz's lawsuit, but her lawyers
filed a revised complaint that recasts the case as a test of what
copyright holders must consider before sending out takedown letters.
Electronic Frontier Foundation lawyers urged the judge to keep the
case alive, arguing that companies such as Universal have an
obligation to investigate and evaluate a video such as Lenz's before
firing off the threatening letters.
Claim of 'fair use'
"It's a tiny, blurry little home movie," said Corynne McSherry, the
foundation's attorney on the case.
Lenz and her legal team depict the video as a "fair use" of the Prince
song. But Universal attorneys insist the company had the legal right
to send the letter in Lenz's case, and that it would be unfair to
artists and media companies to force them to undertake lengthy
inquiries before asserting copyright violations.
Fogel took the company's request to dismiss the case under
consideration and will rule later.
"The copyright owner is arguing that this is infringing; Lenz says it
is fair use," said Mark Lemley, director of Stanford University's Law,
Science and Technology clinic. "There are no cases directly on this
question of user-generated content that incor****ates songs as
background. Lenz will be the first."
In the meantime, Lenz is prepared to take her case as far as it goes
in the courts. The video is back up on YouTube, but that's not enough
to appease Lenz.
"Somebody needs to tell these music companies they can't just throw
out these (takedown letters) and accuse people of violating federal
crimes," she said. "I didn't like feeling like I'd done something
wrong, even though I knew I hadn't. It made me panic."
http://www.mercurynews.com/valley/ci_9932068
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STILL FEELING LIKE THE MAINSTREAM U.S. COR****ATE MEDIA
IS GIVING A FULL HONEST PICTURE OF WHAT'S GOING ON?
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