Copyright action goes crazy as small singer clashes with smaller dancer

Published on Sunday 28 September 2008 19:42

YouTube deleted a clip of a toddler and a battle ensued, write Philip Rodney and Jennifer Whitehead

THE ability to upload video clips to YouTube is no longer in its infancy, but the music publishers for the artist formerly known as "the artist formerly known as Prince" have raised a copyright infringement claim that involves a dancing infant.

Having taken a video of her 18-month-old son dancing in the kitchen, Stephanie Lenz decided to upload the footage to YouTube "for her family and friends to enjoy."

Nothing unusual about that; indeed the idea behind the site is for individuals to share their home made video footage. However Ms Lenz happened to have the Prince song Let's Go Crazy playing in the background.

Several months after the 30-second clip appeared, the Universal Music Publishing Group (Universal), who own the rights to publish the song, came across the video and submitted a "take down" notice to YouTube alleging copyright infringement.

Upon receipt of the complaint, YouTube removed the video and notified Ms Lenz that the clip had been taken down.

In removing public access to the video clip, YouTube acted in accordance with the safeguards provided to internet service providers (ISPs) in the US.

The development of internet services has received considerable support across the Atlantic and has assisted greatly in the growth of the US technology sector.

However, at the same time, the internet has opened up the potential for online copyright infringements. To address this conflict the US Digital Millennium Copyright Act (DMCA) introduced a "safe harbour" regime for ISPs. Under this, copyright infringement claims cannot be raised against ISPs in relation to infringing material appearing on their networks, as long as the ISPs meet certain conditions.

Essentially, in order to ensure safe harbour protection, the ISP must disable access to the infringing material as soon as it has been drawn to its attention. This is generally achieved by the take down notice policy and procedure that websites generally incorporate as part of their standard terms and conditions of use. Similar internet provisions exist in the UK under the E-Commerce (EC Directive) Regulations 2002.

In Ms Lenz's case, Universal notified YouTube that the dancing baby footage infringed their copyright. They did so in compliance with YouTube's content verification and take down procedure.

While that is usually the end of the story in infringement battles, in this case Ms Lenz chose to fight back. Under US law, individuals are entitled to submit a counter notice within 14 business days, and if they do so, YouTube must reinstate the content and the parties in dispute are left to deal with the matter directly.

Ms Lenz has since raised proceedings against Universal and is seeking a declaratory judgment that the footage does not infringe Universal's copyright, together with an injunction preventing them from filing further take down notices in connection with the dancing baby footage.

In addition, Ms Lenz is seeking damages from the publisher based on her claim that Universal has misrepresented itself and interfered in her contract with YouTube.

But is this just a "sign o' the times" or does the claim have a real chance of success?

Ms Lenz does not dispute Universal's ownership of the copyright that entitles them to the exclusive right to publish the song Let's Go Crazy. However, in the US, individuals are allowed to make some use of copyright material in certain circumstances, as long as that use is "fair".

In the UK, individuals are also permitted to make some use of copyright protected work under the "fair dealing" exemptions. These include use for research, private study, criticism and review.

But these permissions are more tightly regulated than in the US, and as such, the scope of the UK's fair dealing principle is more constrained than its American "fair use" counterpart.

In the US "fair use" generally boils down to whether the use will threaten the commercial impact of the original work. In Ms Lenz's case it is hard to see how a small clip of a dancing baby threatens Prince's record sales.

To hold that it does do would substantially limit the existing scope of "fair use".

The civil liberties group, the Electronic Frontier Foundation, who are representing Ms Lenz, have stated: "Copyright abuse can shut down online artists, political analysts, or – as in this case – ordinary families who simply want to share snippets of their day to day lives."

Ms Lenz's misrepresentation claim is an off-shoot of the original case. Under the DMCA, any person "who knowingly or materially misrepresents that material or an activity is infringing" shall be liable for any damages including legal fees.

Ms Lenz alleges that Universal's claim that she infringed their copyright is a misrepresentation, because they failed to take into account the "fair use" principle.

While this controversial case may have serious ramifications for the formerly safe haven of "fair use" the use of take down notices is already widespread.

Due to the international scale of the internet, users accessing YouTube in the UK, or beyond, are required to comply with the site's US centric terms and conditions, but, as Ms Lenz has highlighted, there is the potential for take down notices to be abused. The Lenz case may clarify whether those submitting take down notices have a duty to take account of "fair use" beforehand, but this is never going to be an easy task. Fair use, by its very nature, requires that a number of different factors are weighed up, and in an area where the courts struggle, this is problematic.

As technological development has led to issues of piracy and online copyright infringement, the music industry and other large entertainment sectors have closed ranks and are increasingly seeking to reduce user's rights.

Inevitably, where the US leads the world will follow, and any legal decision may eventually impact upon the use of take down notices in the UK.

If Universal succeed, this would signal a big blow to fair use and to free speech as a whole. To do so would be to go crazy indeed.

&#149 Philip Rodney is partner and chairman and Jennifer Whitehead a senior solicitor of Burness.