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| Suit for Wrongful Filing of DMCA Takedown Notice Actionable |
| on Friday, August 22, 2008 - 05:33 AM Posted by: admin |
 On August 20, 2008, in Lenz v. Universal et al., the U.S. District Court for the Northern District of California, Case No. C 07-3783 JF, entered an order denying defendants' motion to dismiss plaintiff's second amended complaint. Read the order here.On February 7, 2007, Plaintiff Stephanie Lenz (“Lenz”) videotaped her young children
dancing in her family’s kitchen. The song “Let’s Go Crazy” by the artist professionally known as
Prince (“Prince”) played in the background. The video is twenty-nine seconds in length, and
“Let’s Go Crazy” can be heard for approximately twenty seconds, albeit with difficulty given the
poor sound quality of the video.
On February 8, 2007, Lenz titled the video “Let’s Go Crazy #1” and
uploaded it to YouTube.com ("YouTube”), a popular Internet video hosting site, for the alleged
purpose of sharing her son’s dancing with friends and family.
Universal owns the copyright to “Let’s Go Crazy.”
On June 4, 2007, Universal sent
YouTube a takedown notice pursuant to Title II of the Digital Millennium Copyright Act
(“DMCA”), 17 U.S.C. § 512 (2000). The notice was sent to YouTube’s designated address for
receiving DMCA notices, “copyright@youtube.com,” and demanded that YouTube remove
Lenz’s video from the site because of a copyright violation. YouTube removed the video the
following day and sent Lenz an email notifying her that it had done so in response to Universal’s
accusation of copyright infringement. YouTube’s email also advised Lenz of the DMCA’s
counter-notification procedures and warned her that any repeated incidents of copyright
infringement could lead to the deletion of her account and all of her videos. After conducting
research and consulting counsel, Lenz sent YouTube a DMCA counter-notification pursuant to
17 U.S.C. § 512(g) on June 27, 2007. Lenz asserted that her video constituted fair use of “Let’s
Go Crazy” and thus did not infringe Universal’s copyrights. Lenz demanded that the video be reposted.
YouTube re-posted the video on its website about six weeks later. As of the August 20, 2008, the “Let’s Go Crazy #1” video has been viewed on YouTube more than 593,000 times.
On July 24, 2007, Lenz filed suit against Universal alleging misrepresentation pursuant to
17 U.S.C. § 512(f) and tortious interference with her contract with YouTube. She also sought a
declaratory judgment of non-infringement. Universal filed a motion to dismiss, which the Court
granted on April 8, 2008. Lenz was given leave to amend her complaint to replead her first and
second claims for relief. On April 18, 2008, Lenz filed the operative SAC, alleging only a claim
for misrepresentation pursuant to 17 U.S.C. § 512(f). On May 23, 2008, Universal filed its motion to dismiss the SAC.
The court stated "Though Congress did not expressly mention the fair use
doctrine in the DMCA, the Copyright Act provides explicitly that 'the fair use of a copyrighted
work . . . is not an infringement of copyright.' 17 U.S.C. § 107... in order for a copyright owner to proceed under the DMCA with '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,' the owner must evaluate whether the material makes fair use of the copyright. 17 U.S.C. § 512(c)(3)(A)(v). An allegation that a copyright owner acted in bad faith
by issuing a takedown notice without proper consideration of the fair use doctrine thus is
sufficient to state a misrepresentation claim pursuant to Section 512(f) of the DMCA."
The court denied Universal's motion to dismiss stating "Though damages may be nominal and their exact nature is yet to be determined, the
Court concludes that Lenz adequately has alleged cognizable injury under the DMCA."
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