The prodigiously talented Prince \u2013 singer, composer, guitarist, dancer, and more \u2013 is also a frequent instigator of litigation. He clearly takes his copyrights seriously. He\u2019s not always as transcendent in the courts as he is in Paisley Park, however.<\/p>\n
In February 2007 Stephanie Lenz uploaded to YouTube her videotape of her young son walking and dancing to Prince\u2019s hit “Let\u2019s Go Crazy<\/a>.” Prince\u2019s music publisher Universal filed a \u201cTakedown\u201d Notice in June 2007 demanding that YouTube remove the video from its website. Ms. Lenz took the unusual step of turning the tables on the Takedown Notice sender. She sued Universal. Judge Fogel in the federal district court for the Northern District of California indicated early on that her video was protected by the fair use defense.<\/p>\n The legal backdrop for the case is as follows. The Digital Millennium Copyright Act (\u201cDMCA\u201d) provides that if a website accepts uploads of user\u2013generated content (like your own video of your adorable Australian Labradoodle, your late-night Karaoke performance, or a purloined copy of Les Enfants du Paradis<\/em> alike) the website has a \u201csafe harbor\u201d from copyright infringement and therefore is not liable for your copyright infringement if it follows certain minimal procedures. These steps include designating a Copyright Agent and posting \u2013 and following — a copyright policy. If a copyright owner sees or hears something it believes is infringing it must send a formal Takedown Notice — no need to file a lawsuit typically — that complies with the DMCA. If the website takes down the accused content it enjoys the safe harbor. Suffice it to say, the procedures get much more complicated if you want to probe more deeply.<\/p>\n Judge Fogel\u2019s latest orders came in January 2013, this time on summary judgment motions in the case. The ruling, as the Electronic Freedom Frontier Foundation (which assisted Ms. Lenz in her action) notes, sends \u201ccontradictory signals on the future of fair use under the DMCA.\u201d<\/p>\n What\u2019s a copyright owner to do? The Court wrote that \u201cat minimum, for the reasons discussed in its prior order\u2026. a copyright owner must make at least an initial assessment as to whether the fair use doctrine applies to the use in question in order to make a good faith representation that the use is not \u2018authorized by law.\u2019\u201d The court further said that the \u201cevidence is sufficient to establish that Universal issued its Takedown Notice without considering fair use.\u201d It appears that a party in Universal\u2019s position must make the legal determination of whether the facts of the use are subject to the fair use defense. The court left unsettled whether Universal had \u201cwillfully blinded\u201d itself to the fair use defense. For music companies who are metaphorically in a bunker where it seems that the world is against them, the original Lenz decision had to provoke cries of \u201cGive me a break.\u201d Yet, the counter-view is if fair use applies, isn\u2019t it only fair to consider it?<\/p>\n I\u2019ll submit for consideration the thought that Congress largely got the big picture of the DMCA right. If the DMCA didn\u2019t exist, websites like YouTube and Facebook would run the real risk of crippling lawsuits for copyright infringement. Copyright infringement is what the law calls a \u201cstrict liability tort\u201d. In other words, even if someone distributing a copyrighted work has no knowledge \u2013 or even any practical means of knowing — what\u2019s infringing it\u2019s liable. The bookstore selling an infringing book is technically liable for copyright infringement. So, if websites were liable for third party postings the Internet would be a whole lot less vibrant than it is today.<\/p>\n Can and should the DMCA be modified? Yes, the notice and counter-notice procedures need tightening. It\u2019s also reasonable to say that before the Lenz litigation, the applicability of fair use to DMCA notices had not been the focus of much discussion. After the Lenz decision is over we will have more guidance as to the state of the law. Ultimately, the applicability of \u201cfair use\u201d may need consideration by Congress.<\/p>\n Many other DMCA Takedown Notice procedures need review. For example, the takedown notice provisions are open to abuse. A prankster (or astute musical critic) was able to remove Justin Bieber videos<\/a> from YouTube. (Yes, I\u2019ve seen the Biebs in concert \u2013 opening for Taylor Swift, who I went to see. And while I can\u2019t condone illegal behavior in the slightest and therefore am compelled to condemn it, I can understand the motivation.)<\/p>\n When Stephanie Lenz took a video of her baby son dancing on the kitchen floor, who could know all that would come? This is truly the power of the Internet at work.<\/p>\n In February 2015, our colleague and friend, partner Mark Fischer, passed away. We have made his blog posts available in honor of both his nuanced and wide-ranging knowledge of intellectual property, new media and entertainment law and of his entertaining style. Please read our tribute to Mark<\/u><\/a> in the firm’s <\/em>Alumni Spotlight publication and his obituary<\/u><\/a> in the <\/em>Boston Globe.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":" The prodigiously talented Prince \u2013 singer, composer, guitarist, dancer, and more \u2013 is also a frequent instigator of litigation. He clearly takes his copyrights seriously. He\u2019s not always as transcendent in the courts as he is in Paisley Park, however.<\/p>\n","protected":false},"author":105,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[24,51,83,84,5,88,62,86,87,85],"ppma_author":[251],"class_list":["post-37","post","type-post","status-publish","format-standard","hentry","category-general","tag-copyright","tag-dmca","tag-fair-use","tag-justin-bieber","tag-mark-fischer","tag-prince","tag-social-media","tag-takedown","tag-websites","tag-youtube"],"authors":[{"term_id":251,"user_id":105,"is_guest":0,"slug":"mafischer","display_name":"Mark A. 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