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Pay attention to the dancing baby

What businesses need to know before sending takedown notices


A while back, the 9th U.S. Circuit Court of Appeals issued a decision in what has come to be known as the “Dancing Baby Case”. Every business needs to know about it before sending Digital Millennium Copyright Act (DMCA) takedown notices to Web hosts and other companies that host third-party content such as Facebook, YouTube, Amazon and eBay.

Although the biggest users of the DMCA are media companies and content producers, pretty much any business could find itself dealing with DMCA issues. A frequent issue in our office is competitors’ unauthorized utilization of product photographs, product videos, or logos that are protected by copyright.

The DMCA has been a powerful tool for businesses to fight copyright infringement, but it is somewhat of a double-edged sword that can land companies in a host of trouble that they never expected.  While it is important to police one’s intellectual property, the dancing baby case is a good example of how knee-jerk reactions and overly aggressive enforcement can land a company in a whole host of legal trouble that it never anticipated.

The DMCA was passed in 1998 to implement two treaties of the World Intellectual Property Organization.  The two treaties dealt with digital rights management and providing a safe harbor for companies that host third-party content.  The latter created a procedure that is commonly referred to as “notice and takedown.”   The notice and takedown procedures were established to provide third-party hosts a shield from secondary copyright infringement liability. 

If a host complies with certain procedures, promptly removing or denying access to infringing content upon receiving a takedown, it will be shielded from copyright infringement liability.  The notice and takedown procedures also provide a host with a liability shield from its own customers in the event that it removes or denies access to allegedly infringing content.  This can be very handy in the situation where you are dealing with an uncooperative or foreign infringer, as hosts are generally willing to comply with a conforming takedown notice. 

Because this procedure works so well and is so effective, businesses and their attorneys will sometimes fire off notices without considering all the factors.  The DMCA requires that the notice be sent with a “good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.”  Generally speaking, it’s the “the law” portion that trips people up.  Additionally, the DMCA has provisions that are aimed at deterring abuse of the system by authorizing damages to be awarded if a person “knowingly materially misrepresents … that the material or activity is infringing.”  When you add in the often-confusing doctrine of fair use, that’s when things start to get interesting and we end up talking about dancing babies.

The heart of the dancing baby case (formally named Lenz v. Universal Music Corp. et al.) revolves around a 29-second video of Stephanie Lenz’s 13-month-old son dancing to Prince’s song “Let’s Go Crazy” that was posted to YouTube in 2007.  The song was playing on a stereo in the background as Lenz’s son danced around the kitchen.  

Universal Music, which was responsible for enforcing Prince’s rights at the time, had paid employees that searched YouTube on a daily basis.  They would look for videos that used Prince’s compositions in which the song was recognizable, was in a significant portion of the video or was the focus of the video.  If the video met those criteria, then a takedown notice would be sent.  The analysis did not consider fair use.  

Universal Music sent a notice and takedown letter to YouTube and YouTube removed the video. Lenz then sued Universal seeking damages alleging that Universal had misrepresented the infringement in violation of the DMCA because the appearance of “Let’s Go Crazy” in the video was protected by fair use.

The issue on appeal was whether Universal had to consider fair use aspects when determining whether there was a good faith belief of infringement It now goes back to the trial court to see if Universal really had a good faith belief of infringement.  Since the music was in the background, was distorted, not high quality, and was only incidental to the main focus of the non-commercial video (the dancing toddler), things don’t look good for Universal.

The main lesson for businesses is that it is really important to fight the immediate urge to fire off a DMCA takedown letter every time a potential copyright violation is found on the Internet.  Doing so without a thoughtful consideration of the elements of copyright infringement and exceptions to copyright infringement such as fair use may not only result in the content to continue to be accessible, but it could very well subject your business to a very large judgment against it for abuse of the DMCA.

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Peter Lemire

Peter Lemire is a founding member of the intellectual property law boutique, Leyendecker & Lemire. Leyendecker & Lemire specialize in patents, trademarks and related complex civil litigation. Peter Lemire can be reached directly at 303.768.0641 or peter@coloradoiplaw.com. Visit www.coloradoiplaw.comfor further information, including Leyendecker & Lemire’s weekly blog, “Control, Protect & Leverage.” 

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