• Court Permits YouTube Toddler Video "Fair Use" Case to Proceed
  • March 19, 2010 | Author: Kenneth Clark
  • Law Firm: Aird & Berlis LLP - Toronto Office
  • Stephanie Lenz’s video of her toddler dancing caused an internet sensation when Universal Music Group sent her a Digital Millennium Copyright Act (DMCA) take-down notice in light of the background music in the video, Prince’s “Let’s Go Crazy.” Lenz, with the support of the Electronic Frontier Foundation, fought back with a counter-suit claiming abuse of copyright. Recently, a judge of the United States District Court for the Northern District of California granted partial summary judgement in favour of Ms. Lenz, striking out some of Universal’s affirmative defences, thus allowing the case to proceed.

    This case is a landmark case regarding the scope of “fair use” (called “fair dealing” in Canada) and the doctrine of “abuse of copyright.” It has become a viral video and a good example of potentially overzealous enforcement of IP rights. See for yourself if you think that the background music in this video infringes Universal’s rights.

    Ms. Lenz has sued Universal for damages under the DMCA’s provision (set out below) that permits a plaintiff to recover statutory damages for bad-faith use of the DMCA notice and take-down provisions:

    17 U.S.C. - 512(f)

    (f) Misrepresentations. -- Any person who knowingly materially misrepresents under this section --

    (1) that material or activity is infringing, or

    (2) that material or activity was removed or disabled by mistake or
    misidentification,

    shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

    This section, according to the Judge, has not yet received judicial scrutiny.

    In its decision, the Judge struck out defences by Universal that could have led to a determination under the terms of this statute, including an allegation of “unclean hands” and that Ms. Lenz was not actually damaged by the take-down of her video.

    Given the recent Conservative Throne Speech’s mention of copyright reform, it looks like this case might be something the government might want to consider in setting out the delicate balance between normal users of web 2.0 resources and the desire of rights holders to protect their valuable IP. See Tony Clement’s recent interview with respect to the Conservatives’ attempt to create a “made in Canada” approach to web 2.0 and copyright concerns.