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YouTube Forced to Takedown Amateur Let's Go Crazy Video

Lenz v. Universal Music Corp., ---F.Supp.2d---, 2008 WL 3884333 (N.D. Cal., Aug. 20, 2008)

In February 2007, Stephanie Lenz videotaped her children dancing in her family’s kitchen to the Prince song “Let’s Go Crazy”. The twenty-nine second video had poor sound quality, but an audible portion of the song included the lyrics “C’mon baby let’s get nuts,” along with the song’s distinctive guitar solo. Lenz uploaded the video entitled “Let’s Go Crazy #1” to the popular web-hosting site YouTube.com to share her son’s dancing with friends and family. The video was available to the public via YouTube.

Universal Music Corp., et al (Universal) owns the copyright to “Let’s Go Crazy,” and in June 2007, sent YouTube a takedown notice under Title II of the Digital Millennium Copyright Act (DMCA) (17 U.S.C. § 512), demanding that YouTube remove Lenz’s video from the site for copyright infringement. YouTube removed the video the following day and sent Lenz an email explaining that the removal was in response to Universal’s accusation. YouTube warned Lenz that any repeated incidents of copyright infringement could lead to deletion of her account and all of her videos.

In response, Lenz sent YouTube a DMCA counter-notification under 17 U.S.C. § 512(g), asserting that her video constituted fair use of “Let’s Go Crazy,” did not infringe Universal’s copyrights, and demanded that YouTube re-post the video. YouTube re-posted the video six weeks later, resulting in over 593,000 views.

In September 2007, Prince spoke publicly about his efforts to “reclaim his art on the Internet,” and threatened to sue several Internet service providers for infringement. In October 2007, Universal issued a public statement that it was “wrong” for YouTube to appropriate Prince’s music “as a matter of principle,” and that Prince had a legal right to demand removal.

Lenz sued Universal, arguing that Universal issued the YouTube removal notice only to appease Prince, and alleging in an amended complaint misrepresentation under 17 US.C. §512(f). Her position was that Universal misrepresented in its takedown notice that the use of the copyrighted material was not authorized by the law, because the fair use doctrine authorized this particular use. Universal moved to dismiss Lenz’s amended complaint for failure to state a claim.

In a case of first impression, the District Court (N.D. California) considered whether the DMCA requires a copyright owner to evaluate the fair use doctrine in formulating 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.” 17 U.S.C. §512(c)(3)(A)(v).

The Court held that the Copyright Act, 17 U.S.C. § 107, explicitly provides that the fair use of a copyrighted work does not constitute infringement. As such, Lenz’s allegation that Universal acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine was sufficient to state a misrepresentation claim under DMCA section 512(f).

Lenz sufficiently alleged that Universal, a sophisticated corporation familiar with copyright actions, acted in bad faith and demonstrated deliberate ignorance of fair use, issuing the takedown notice to mollify Prince. Lenz also adequately alleged a cognizable injury under the DMCA, in that she at least alleged expenses incurred in responding to the takedown notice. The Court suggested that nominal damages may be sufficient.

The Court denied Universal’s motion to dismiss.


 

 

Judge(s): Jeremy Fogel, District Court Judge
Related Categories: Civil Procedure , Civil Remedies , Entertainment , Torts
 
Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Marcia Hofmann Electronic Frontier Foundation
Michael Kwun Electronic Frontier Foundation
Corynne McSherry Electronic Frontier Foundation
Jason M. Schultz Electronic Frontier Foundation

 
Defendant Lawyer(s) Defendant Law Firm(s)
Kelly Klaus Munger Tolles & Olson LLP
Amy C. Tovar Munger Tolles & Olson LLP

 

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Click the maroon box above for a formatted PDF of the decision.
14 (jfex1) case no. c 07-3783 jf kelly max klaus 20 13 intimidation; and (4) section 512 does not provide for injunctive relief. 21 3 11 the law." lenz argues that fair use is an authorized use of copyrighted material, noting that the fair 24 accordingly, in order for a copyright owner to proceed under the dmca with "a good faith his permission. 3 28 legally, he has the right to have his music removed. we support him and this 17 13 3 "let's go crazy" can be heard for approximately twenty seconds, albeit with difficulty given the 25 16 order denying motion to dismiss research and consulting counsel, lenz sent youtube a dmca counter-notification pursuant to 12 26 14 defendants. ii. legal standard 11 8 26 because prince "is notorious for his efforts to control all uses of his material on and off the such considerations will arise, there are likely to be few in which a copyright owner's 20 lenz asserts in essence that copyright owners cannot represent in good faith that material 23 13 fair use to survive the instant motion to dismiss. lenz alleges that universal is a sophisticated 9 23 16 impossible to meet any of the requirements of section 512(c) without doing so. a consideration 25 14 case no. c 07-3783 jf order denying motion to dismiss not required. rossi, 391 f.3d at 1003-04. posted. youtube re-posted the video on its website about six weeks later. as of the date of this 13 of the applicability of the fair use doctrine simply is part of that initial review. as the ninth corporation familiar with copyright actions, and that rather than acting in good faith, universal 4 25 10 18 such use. see, e.g., online policy group v. diebold, inc., 337 f. supp. 2d 1195, 1204-05 (n.d. 2 19 28 17 (1984) ("[a]nyone . . . who makes a fair use of the work is not an infringer of the copyright with 7 7 fair use prior to sending a takedown notice because fair use is merely an excused infringement of 25 6 [lenz's] injury includes, but is not limited to, the financial and personal expenses in september 2007, prince spoke publicly about his efforts "to reclaim his art on the 5 "dismissal under rule 12(b)(6) is appropriate only where the complaint lacks a 10 8 at oral argument, counsel for lenz indicated that while the damages incurred in preparing made the following comment: associated with responding to the claim of infringement and harm to her free you think of the music?" on february 8, 2007, lenz titled the video "let's go crazy #1" and case no. c 07-3783 jf b. the sufficiency of lenz's second amended complaint denied. universal shall file its answer within twenty (20) days of the date of this order. promote prince's personal agenda and that its actions "ha[ve] nothing to do with any particular 9 1 14 11 order denying motion to dismiss 14 interpretation of the dmca furthers both the purposes of the dmca itself and copyright law in (vi) a statement that the information in the notification is accurate, and under (3) the amount and substantiality of the portion used in relation to the american train dispatchers ass'n, 499 u.s. 117, 128 (1991). if "congress has made its intent 19 22 ("dmca"), 17 u.s.c. 512 (2000). the notice was sent to youtube's designated address for sufficient to state a misrepresentation claim pursuant to section 512(f) of the dmca. such an permitted by law or not contrary to law. though congress did not expressly mention the fair use (jfex1) **e-filed 8/20/08** objective, standard").5 court concludes that lenz adequately has alleged cognizable injury under the dmca. 12 order, the "let's go crazy #1" video has been viewed on youtube more than 593,000 times. v. email: kelly.klaus@mto.com 21 prince ("prince") played in the background. the video is twenty-nine seconds in length, and case 5:07-cv-03783-jf document 45 filed 08/20/2008 page 4 of 10 23 10 without compromising "the movies, music, software and literary works that are the fruit of 5 18 1 27 universal also contends that the sac fails to allege a compensable loss under the 11 centinela hosp. medical center, 521 f.3d 1097, 1104 (9th cir. 2008). "while a complaint united states district judge 25 27 predict whether a court eventually may rule in their favor. however, while these concerns are copyrighted work as a whole; and baby let's get nuts" and the song's distinctive guitar solo. lenz is heard asking her son, "what do on july 24, 2007, lenz filed suit against universal alleging misrepresentation pursuant to owner of an exclusive right that is allegedly infringed. "the `good faith belief' requirement in 512(c)(3)(a)(v) encompasses a subjective, rather than http://www.youtube.com/watch?v=n1kfjhfw1hq. 8 (jfex1) 10 dismiss 17 15 by issuing a takedown notice without proper consideration of the fair use doctrine thus is case 5:07-cv-03783-jf document 45 filed 08/20/2008 page 6 of 10 lenz has dubbed this alleged pattern of activity the "prince policy."3 order denying motion to dismiss disabled, and information reasonably sufficient to permit the service provider to order denying motion to dismiss general. in enacting the dmca, congress noted that the "provisions in the bill balance the need infringing material, any such duty would arise only after a copyright owner receives a counter- 28 20 5 (internal quotation marks and citation omitted). here, the court concludes that the plain meaning 9 damages in reviewing counter-notice procedures, seeking the assistance of an attorney, and counter-notification procedures and warned her that any repeated incidents of copyright amy c. tovar san jose division and the counter-notification remedy does not sufficiently address these harms. a good faith 2 20 cal. 2004) (suggesting that the copyright owner sought to use the dmca "as a sword to suppress iv. order speech rights under the first amendment. because universal's notice was understandable, their actual impact likely is overstated. although there may be cases in which 2 26 case 5:07-cv-03783-jf document 45 filed 08/20/2008 page 3 of 10 10 27 17 5 belief that use of the material in the manner complained of is not authorized by the copyright 1 14 13 6 rossi v. motion picture ass'n of america, inc., 391 f.3d 1000, 1004 (9th cir. 2004) (holding that 22 others. but in the majority of cases, a consideration of fair use prior to issuing a takedown notice 15 internet" and threatened to sue several internet service providers for alleged infringement of his 2. damages 16 intimidating, ms. lenz is now fearful that someone might construe some portion requiring owners to consider fair use will help "ensure[] that the efficiency of the internet will fair use only excuses infringement, the fact remains that fair use is a lawful use of a copyright.4 (jfex1) any particular video that uses his songs. it's simply a matter of principle. and lenz has posted other home videos on youtube, allegedly for the same purpose. these1 6 25 respect to such use."). (1) universal is a private entity and thus not subject to first amendment actions; (2) lenz did not email: corynne@eff.org the purpose of section 512(f) is to prevent the abuse of takedown notices. if copyright good cause therefor appearing, it is hereby ordered that the motion to dismiss is 13 11 23 17 24 2 6 4 circuit observed in rossi, a full investigation to verify the accuracy of a claim of infringement is case number c 07-3783 jf in determining whether the use made of a work in any particular case is a fair use 21 citations omitted). 9 24 order denying motion to dismiss causes significant injury to the public where time-sensitive or controversial subjects are involved 10 michael soonuk kwun instant motion. the copyright act unequivocally establishes the four factors used to determine fair use: plaintiff, 9 that section 512(c)(3)(a) does not even mention fair use, let alone require a good faith belief that commercial nature or is for nonprofit educational purposes; (last viewed july 23, 2008). lenz asserts in her complaint that "prince himself demanded that 23 continue to improve and that the variety and quality of services on the internet will expand" 14 copyrighted work. 18 do." bell atlantic corp. v. twombly, --- u.s. ----, 127 s. ct. 1955, 1964-65 (2007) (internal its agent, or the law. go crazy" and thus did not infringe universal's copyrights. lenz demanded that the video be re- 20 23 lenz's allegations are sufficient at the pleading stage. case no. c 07-3783 jf 27 dismiss for lack of personal jurisdiction). 26 music copyrights. lenz alleges that universal issued the removal notice only to appease prince2 3 second claims for relief. on april 18, 2008, lenz filed the operative sac, alleging only a claim 11 the operative sac contains sufficient allegations of bad faith and deliberate ignorance of universal also points out that the question of whether a particular use of copyrighted material 22 potential infringements. the dmca already requires copyright owners to make an initial review 24 26 6 for rapid response to potential infringement with the end-users [sic] legitimate interests in not 5:15-25. though damages may be nominal and their exact nature is yet to be determined, the 19 copyright owner to consider the fair use doctrine in formulating a good faith belief that "use of read the moving papers and has considered the oral arguments of counsel. for the reasons set locate the material. universal owns the copyright to "let's go crazy." on june 4, 2007, universal sent owner, its agent, or the law," the owner must evaluate whether the material makes fair use of the 17 cognizable legal theory or sufficient facts to support a cognizable legal theory." mendiondo v. youtube to remove thousands of different videos that use prince music without 12 13 dancing in her family's kitchen. the song "let's go crazy" by the artist professionally known as 8 copyright owner deliberately has invoked the dmca not to protect its copyright but to prevent 18 7 18 notification, a representative list of such works at that site. 8 case no. c 07-3783 jf whether congress has spoken on the subject before [it]." norfolk and western ry. co. v. 21 2 order denying motion to dismiss (jfex1) 24 (jfex1) 23 22 email: michael@eff.org 5 music publishing, inc., and universal 4 declaratory judgment of non-infringement. universal filed a motion to dismiss, which the court 15 prince believes it is wrong for youtube, or any other user-generated site, to case 5:07-cv-03783-jf document 45 filed 08/20/2008 page 10 of 10 (2) the nature of the copyrighted work; 7 5 27 8 22 whether fair use qualifies as a use "authorized by law" in connection with a takedown 13 13 acted solely to satisfy prince. sac 31. lenz alleges that prince has been outspoken on matters 18 28 15 11 (4) the effect of the use upon the potential market for or value of the 18 4 complaining party, such as an address, telephone number, and, if available, an 10 23 6 universal contends that copyright owners cannot be required to evaluate the question of 1 19 publication of embarrassing content rather than as a shield to protect its intellectual property"). 23 10 the supreme court also has held consistently that fair use is not infringement of a4 when interpreting a statute, a court must begin "with the language of the statute and ask music. thus the question in this case is whether 17 u.s.c. 512(c)(3)(a)(v) requires a copyright. see e.g., sony corp. of america v. universal city studios, inc., 464 u.s. 417, 433 work . . . is not an infringement of copyright." 17 u.s.c. 107. even if universal is correct that responding to the takedown notice. see transcript of law & motion hearing, july 18, 2008, p. 27 4 7 copyright. 17 u.s.c. 512(c)(3)(a)(v). an allegation that a copyright owner acted in bad faith dmca notice at prince's behest, based not on the particular characteristics of [the video] or any finding is made upon consideration of all the above factors. 24 20 additional videos are not at issue in this action. american creative genius." sen. rep. no. 105-190 at 2 (1998). 2 12 8 infringes a copyright without considering all authorized uses of the material, including fair use. case 5:07-cv-03783-jf document 45 filed 08/20/2008 page 9 of 10 one might imagine a case in which an alleged infringer uses copyrighted material in a5 youtube a takedown notice pursuant to title ii of the digital millennium copyright act 21 1 rossi, and following discovery her claims well may be appropriate for summary judgment, will not be so complicated as to jeopardize a copyright owner's ability to respond rapidly to a copyright rather than a use authorized by the copyright owner or by law. universal emphasizes 4 second amended complaint ("sac"), 30; see also j. aliva et al., the home video prince 28 corynne mcsherry 11 case no. c 07-3783 jf 28 email: amy.tovar@mto.com 17 u.s.c. 512(c)(3)(a) (emphasis added). here, the parties do not dispute that lenz used 3 defendants universal music corp., universal music publishing, inc., and universal 20 sept. 13, 2007, http://www.reuters.com/article/internetnew/idusl1364328420070914?feedtype 17 7 13 1 26 (jfex1) marcia clare hofmann the fact that a work is unpublished shall not itself bar a finding of fair use if such order denying motion to dismiss that lenz will be able to prove that universal acted with the subjective bad faith required by 12 11 the material in the manner complained of is not authorized by the copyright owner, its agent, or principle' prince `has the right to have his music removed.'" sac 31. 3 4 15 28 17 u.s.c. 512(f) and tortious interference with her contract with youtube. she also sought a accusation of copyright infringement. youtube's email also advised lenz of the dmca's 16 15 10 17 7 determination that a particular use is not fair use will meet the requisite standard of subjective 1 uploaded it to youtube.com ("youtube"), a popular internet video hosting site, for the alleged in the united states district court 18 21 copyright owner were required by the dmca to evaluate fair use with respect to allegedly owners are immune from liability by virtue of ownership alone, then to a large extent section 22 16 attacked by a rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a purpose of sharing her son's dancing with friends and family. youtube provides "video1 24 12 4 universal suggests that copyright owners may lose the ability to respond rapidly to doesn't want you to see, abc news, oct. 26, 2007, http://abcnews.go.com/print?id+3777651 copyright act of 1976 provides that "[n]otwithstanding the provisions of sections 106 and 106a, 15 good-faith belief that it actually infringed a copyright but on its belief that, as `a matter of (iii) identification of the material that is claimed to be infringing or to be the plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' requires more than a. fair use and 17 u.s.c. 512(c)(3)(a)(v). case 5:07-cv-03783-jf document 45 filed 08/20/2008 page 8 of 10 order denying motion to 22 6 order denying motion to dismiss 17 constitutes fair use is a fact-intensive inquiry, and that it is difficult for copyright owners to having material removed without recourse." sen. rep. no. 105-190 at 21 (1998). potential infringements if they are required to evaluate fair use prior to issuing takedown notices. 12 25 25 22 15 16 26 27 14 iii. discussion universal music corp., universal 20 email: marcia@eff.org for misrepresentation pursuant to 17 u.s.c. 512(f). on may 23, 2008, universal filed the 2 17 u.s.c. 107. undoubtedly, some evaluations of fair use will be more complicated than 12 lenz's counter-notice cannot be elaborated upon for reasons of privilege, lenz did incur actual notice and considers filing suit. see 17 u.s.c. 512(g)(2)(c). 7 5 penalty of perjury, that the complaining party is authorized to act on behalf of the 512(f) is superfluous. as lenz points out, the unnecessary removal of non-infringing material 15 designated for publication 19 3 following day and sent lenz an email notifying her that it had done so in response to universal's email: jason@eff.org issue. see, e.g., doe v. geller, 533 f. supp. 2d 996, 1001 (n.d. cal. 2008) (granting motion to (v) a statement that the complaining party has a good faith belief that use of the a given use of copyrighted material is not fair use. universal also contends that even if a case no. c 07-3783 jf 21 19 9 8 case 5:07-cv-03783-jf document 45 filed 08/20/2008 page 7 of 10 10 material in the manner complained of is not authorized by the copyright owner, the factors to be considered shall include-- clear, [the court] must give effect to that intent." miller v. french, 530 u.s. 327, 336 (2000) copyrighted material in her video or that universal is the true owner of prince's copyrighted order denying motion to dismiss case 5:07-cv-03783-jf document 45 filed 08/20/2008 page 2 of 10 case 5:07-cv-03783-jf document 45 filed 08/20/2008 page 1 of 10 see, e.g., m. collett-white, prince to sue youtube, ebay over music use, reuters,2 28 7 on february 7, 2007, plaintiff stephanie lenz ("lenz") videotaped her young children 7 1 the dmca requires that copyright owners provide the following information in a 4 6 19 1 case 5:07-cv-03783-jf document 45 filed 08/20/2008 page 5 of 10 19 2 (i) a physical or electronic signature of a person authorized to act on behalf of the suffer any actual injury as a result of the notice; (3) universal is not liable for damages for important principle. that's why, over the last few months, we have asked 6 2 appropriate his music without his consent. that position has nothing to do with multiple copyrighted works at a single online site are covered by a single of the potentially infringing material prior to sending a takedown notice; indeed, it would be 27 sac 38. universal nonetheless claims that lenz has not alleged a compensable loss because: 1. the "prince policy" 28 21 18 27 (jfex1) case no. c 07-3783 jf sharing" or "user generated content." the video was available to the public at 26 16 26 2 dmca. universal brief at 2. the sac provides that: 9 [youtube] video that uses his songs." id. at 30. although the court has considerable doubt 3 9 18 poor sound quality of the video. the audible portion of the song includes the lyrics, "c'mon 16 (ii) identification of the copyrighted work claimed to have been infringed, or, if (iv) information reasonably sufficient to permit the service provider to contact the 3 5 22 19 24 takedown notice: 24 14 6 notice pursuant to the dmca appears to be an issue of first impression. though it has been 3 6 5 this order has been served upon the following persons: 25 =rss&feedname_internetnews&rpc=22&sp=true (last visited july 23, 2008). the fair use of a copyrighted work . . . is not an infringement of copyright." 17 u.s.c. 107. [re: docket no. 38] 24 20 3 1 20 single video on youtube since she received the takedown notice. jason m. schultz 9 doctrine in the dmca, the copyright act provides explicitly that "the fair use of a copyrighted 12 16 electronic mail address at which the complaining party may be contacted. dated: august 20, 2008 owner of an exclusive right that is allegedly infringed. 21 forth below, the motion will be denied. 28 (jfex1) 8 granted on april 8, 2008. lenz was given leave to amend her complaint to replead her first and case no. c 07-3783 jf (jfex1) case no. c 07-3783 jf of a new home video to infringe a copyright. as a result, she has not posted a to state a claim upon which relief may be granted. see fed. r. civ. p. 12(b)(6). the court has 8 use doctrine itself is an express component of copyright law. indeed, section 107 of the 4 14 5 26 25 17 subject of infringing activity and that is to be removed or access to which is to be 27 19 jeremy fogel 4 23 9 15 manner that unequivocally qualifies as fair use, and in addition there is evidence that the consideration of whether a particular use is fair use is consistent with the purpose of the statute. for the northern district of california 2 internet." lenz's opposition brief at 3. in an october 2007 statement to abc news, universal stephanie lenz, 5 lenz's video from the site because of a copyright violation. youtube removed the video the (1) the purpose and character of the use, including whether such use is of a of copyright infringement on the internet and has threatened multiple suits against internet 3 22 labels and conclusions, and a formulaic recitation of the elements of a cause of action will not universal seek the removal of the ["let's go crazy #1"] video . . . [and that] universal sent the 16 8 17 u.s.c. 512(g) on june 27, 2007. lenz asserted that her video constituted fair use of "let's music publishing group (collectively, "universal") move to dismiss the instant case for failure i. background music publishing group, bad faith required to prevail in an action for misrepresentation under 17 u.s.c. 512(f). see 12 receiving dmca notices, "copyright@youtube.com," and demanded that youtube remove 9 service providers to protect his music. id. at 28. lenz also alleges that universal acted to 11 infringement could lead to the deletion of her account and all of her videos. after conducting 10 7 21 of "authorized by law" is unambiguous. an activity or behavior "authorized by law" is one discussed in several other actions, no published case actually has adjudicated the merits of the


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