A NOTE ABOUT PDF PAGE REFERENCES. This page links to PDFs of the important filings in Lenz v. Universal Music Corp. Most of these PDFs have two numbering systems. There are numbers at the bottom of the pages and there are page numbers of the PDF. They are often not the same since the first few pages of many of the documents contain Tables of Contents and the like. These are enumerated with lower case roman numerals. The main filing itself is then enumerated with Arabic numberals starting at 1. For example, in the second document listed below (Memorandum in Support of Defendant's Motion to Dismiss), page 1 of the of the filing (the Introduction and Summary of Argument) is actually on page 6 of the PDF. I will be referring to the page number of the PDF rather than the page number at the bottom of the page. Thus, the Introduction and Summary of Argument for this document will be referred to as page 6.)
19. On information and belief, Defendants knew or should have known that the Holden Dance Video did not infringe any Universal copyrights on the date they sent YouTube their complaint under the DMCA.
20. Accordingly, Defendants violated 17 U.S.C. § 512(f) by knowingly materially misrepresenting that Holden Dance Video infringed Universal’s copyright.
The Ninth Circuit rejected Rossi’s reading of the statute and affirmed summary judgment for the MPAA. The court held that the “interpretive case law and the statutory structure [of the DMCA] support the conclusion that the ‘good faith belief’ requirement ... encompasses a subjective, rather than objective, standard.” Id. at 1004 (emphasis added). To reach this conclusion, the Ninth Circuit had to construe “knowingly” in Section 512(f), and the court’s construction of that provision forecloses Plaintiff’s claim. . .
The contention that the fair use defense is “self-evident” is just an objective standard dressed up with different verbiage. What Plaintiff is saying is that a hypothetical, objectively reasonable copyright owner would have predicted both that the affirmative defense of fair use would be raised (something that is not done until a court complaint is answered) and that a courtwould have credited the defense as meritorious. Plaintiff is not alleging that Universal actually did know that Plaintiff would assert fair use were she sued (which she has not been) and that her defense would be held meritorious (which is entirely speculative), but chose to send its notice notwithstanding this actual knowledge. Under Rossi, only the latter type of knowledge could potentially be actionable in a case properly arising under Section 512(f).
Plaintiff’s attempt to substitute the label “self-evident non-infringing fair use” for an allegation of subjective, “actual knowledge” is particularly inappropriate in light of the nature of the fair use defense. . . .
More fundamentally, Plaintiff’s reliance on a supposed “self-evident” fair use defense also fails because there is no such thing. It is a concept that can be found only in the wishful thinking of the EFF. It is not found in any statute or case law. Whether a use does or does not amount to a fair use is never “self-evident,” but is reached only after a defendant first affirmatively pleads it and then proves it after an intense equitable balancing of multiple factors, including four factors set out in the text of Section 107. The Supreme Court has emphasized that the fair use analysis does not lend itself to “bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case analysis.” Campbell, 510 U.S. at 577. . . .
In fact, as Professor Nimmer observes in his leading copyright treatise, each of the Supreme Court’s three landmark fair use decisions was “overturned at each level of review, two of them by split opinions at the Supreme Court level”; Professor Nimmer points to this divergence on whether a use is fair or not – even on the same facts, within the same litigation – as proof of “[t]he malleability” of the fair use inquiry. 4 Nimmer on Copyright § 13.05, at 13-156 (footnotes omitted) . . .
Given the inherently fact-specific, equitable nature of fair use, Plaintiff’s reference to a “self-evident” fair use is oxymoronic. If courts can (and often do) disagree about whether the same factual record does or does not excuse a use as “fair” under Section 107, a plaintiff under Section 512(f) cannot premise a defendant’s “actual knowledge” based on its failure to recognize a use as “self-evidently” fair.
It is not surprising that the defendants want the Court to use the subjective standard set forth in Rossi v. MPAA rather than the objective standard set forth in OPG v. Diebold. It would be relatively easy for Lenz to prove that it would be self-evident to a REASONABLE PERSON watching her video that the video fell within fair use and that sending a DMCA complaint would be an abuse of the process . It would be much more difficult for her to prove under Rossi's subjective standard that Universal ACTUALLY KNEW IT WAS DOING SOMETHING WRONG when it filed the complaint.
What is breathtaking about Universal's defense is the breathtaking boldness in which they claim there is no such thing as "self-evident" fair use. Their claim rests on two assumptions:
- Fair Use is an affirmative defense. Procedurally this is true. Fair Use can only be "proven" if the copyright holder sues the alleged infringer and the alleged infringer raises this as a defense at her trial.
- Many fair use cases are very difficult. They are extremely close calls, and as Nimmer notes, different courts can reach different conclusions when dealing with the same set of facts and evidence.
But this analysis is faulty for several reasons. First, Fair Use is a right as well as a defense, and it may be self-evident in certain situations when that right is stomped on. You don't always need a Court to pronounce that your rights have been stomped on in order for you to know that someone has stomped on your rights. Arguing that you can never determine whether a use is fair without having a court pronounce it is fair is like arguing that you can never be sure that a tree has fallen in the woods unless someone is actually there to hear it fall.
The fact that it most cases that go to Court are close calls when it comes to Fair Use doesn't prove that there are no situations where a use is obviously fair. Usages that are obviously fair use are extremely unlikely to make it to court. No copyright holder in their right mind is going to sue someone whose use of their material is obviously and self-evidently fair.
Though Fair Use involves a balancing of at least four factors, there will be situations where all four factors point toward fair use. For example, take my analysis of whether YouTube is legally obligated to restore a video when receiving a DMCA counternotice. You will note that I have quoted a paragraph from YouTube's January 12, 2009 blog post, a paragraph from their May 21, 2009 blog post, a sentence from their March 31, 2008 blog post, and a sentence from their policy statement. This is an example of self-evident fair-use.
- It is for criticism and comment. It is highly transformative. And it is for noncommercial use.
- The nature of the copyrighted work: I quoted from a work that was informative and factual work. YouTube's blog posts and policy statement informed us of important facts regarding Youtube.
- I took only small amounts from YouTube's website. I took no more than was necessary to make my points.
- The portions that I took is not going to compete in the marketplace with any products that Google/YouTube is selling. My use of their material is not going to hurt them financially because people are not going to use my analysis as a substitute for buying their products or using their website.
All four factors point toward Fair Use. The Fair Use is self-evident. The fact that lawyers for Universal claim that there is no such thing as self-evident fair use and would refuse to recognize this as an example that proves them wrong only reveals their disingenuousness.
Lenz devotes much effort on pages 10 - 12 to spinning Rossi v. Motion Picture Association of America so that it appears to support a legal theory benneficial to her case. She contends that the Court in Rossi held that the MPAA did an investigation that was sufficient to convince the MPAA that Rossi's use of their material went beyond fair use. Lenz stresses that it was the sufficiency of the investigation that convinced the Court to rule in favor of the MPAA.
I believe this is a misreading of Rossi, and emphasizing the sufficiency of Rossi's investigation was a mistake. If the Rossi Court HAD said that the MPAA had done sufficient investigation for forming a good-faith belief then this implies that they had to do a minumum amount of investigation for them to have a REASONABLE basis for a good-faith belief. In fact, the Rossi Court rejected the notion that the copyright owner had to act reasonbly in coming to her good-faith belief. All that mattered, according to the Rossi Court, was the copyright owner's state of mind--no matter how unreasonably she arrived at that state of mind. Taking the Rossi's Court decision to its logical and absurd conclusion, the copyright holder isn't legally obligated to conduct ANY investigation whatsoever. She can't be penalized under 512(f) EVEN IF THE WORK SHE WAS TARGETING WITH A TAKEDOWN NOTICE DIDN'T COPY FROM HER WORK AT ALL. So long as she was in the propper frame of mind and GENUINELY BELIEVED that copying beyond fair use had occurred, she was free and clear as far as 512(f) was concerned--even if that frame of mind was barking mad, howling-at-the-moon luncacy.
I am not a lawyer so my opinion here should be taken with a sack of salt. But I think Lenz's lawyers should have admitted that the precedent that the Court of Appeals set in Rossi did not favor them and then attacked the weaknesses of the Rossi decision. Jeremy Fogel, the Judge hearing the Lenz case, could then do what all good little judges of lower courts are supposed to do and obey the precedent set by the higher court without thinking. This would probably result in a loss for Lenz but it would set the stage for an appeal and give the Court of Appeals a second chance at getting it right. Or Judge Fogel could have grown a set of balls and ordered that Rossi shouldn't hold because the higher court hadn't taken certain factors into consideration in the Rossi decision. Attempting to spin Rossi's meaning to fit their case was weaker than launching a direct attack on Rossi itself. This is because Rossi is unspinnable, and trying to spin it the way that Lenz's lawyers spun it only opens up Lenz for attack by Universal's lawyers.
In fact, Lenz's lawyers DO attack Rossi fairly vigorously and they score many good points while claiming that Universal's interpretation of Rossi could not possibly be what Congress had in mind. They show that Universal's interpretation of Rossi leads to unacceptable First Amendment harm. And that's the problem with their argument. Their tactics are brilliant, but their strategy is flawed. The should have acknowledged that Universal's interpretation of Rossi is correct and then discredited Rossi by showing how it unacceptably stomps on First Amendment considerations.
In the Senate Report on Section 512, Congress made it clear that Section 512 was intended to “balance the need for rapid response to potential infringement with the end-users legitimate interests in not having material removed without recourse.” . . .
Under Universal’s interpretation, Section 512(f) becomes a dead letter. By arguing an
“actual knowledge” standard for legal determinations, Universal is arguing that no copyright holder can ever violate section 512(f) unless a court has previously ruled that the material at issue is noninfringing. Such a rule would directly contradict the purpose and structure of Section 512. As noted above, Section 512 was enacted by Congress to allow for rapid responses to potential copyright infringement. 17 U.S.C. § 512(c) (describing takedown procedures), (g) (describing procedures for reinstating material contingent on copyright owner’s response to counter-notice), and (h) (authorizing pre-litigation subpoenas to identify users who posted allegedly infringing material). Thus, Section 512 was meant as an alternative or, in some instances, a precursor to a possible infringement lawsuit, not an antecedent. If 512(f) liability were only available after an infringement action, there would be no point to the 512 process.
Moreover, such an interpretation of 512(f) would fail to achieve the two goals set forth by
Congress in the legislative history – to protect end users posting non-infringing material from
frivolous takedowns and to deter abuse of the DMCA notice process. Under Universal’s theory, a copyright owner’s subjective belief that infringement had occurred, no matter how unreasonable, could shield frivolous or malicious DMCA takedowns from any form of review or redress under 512(f). For example, Universal could incorrectly claim that a video that merely mentioned the phrase “Let’s Go Crazy” (without copying a single note) was an infringement of its copyright, or that a review of Prince’s new album was infringing. DMCA takedowns for these examples would be excused, under Universal’s interpretation, because there was no ex ante legal determination on the issue and thus, no way for Universal to “actually know” the legal status of the material’s use.
In fact, under Universal’s incorrect standard, even Diebold, whom this Court held violated 512(f) because it sent a DMCA takedown notice when “no reasonable copyright holder could have believed that the portions of the email archive discussing technical problems with [its] voting machines were protected by copyright[,]” Diebold, 337 F.Supp.2d at 1204, would have escaped 512(f) liability because at the time Diebold sent the notice, no court had expressly ruled on the legal status of posting the email archive. Such a standard would provide no protection for end users and no deterrence for abuse of the DMCA process. It cannot be what Congress intended.
Finally, the Rossi/Diebold standards are supported by the Ninth Circuit’s recent decision in Perfect 10 v. ccBill, 488 F.3d 1102 (9th Cir. 2007). In ccBill, the Court stated:
The DMCA requires a complainant to declare, under penalty of perjury, that he is
authorized to represent the copyright holder, and that he has a good-faith belief that the use is infringing. This requirement is not superfluous. Accusations of alleged infringement have drastic consequences: A user could have content removed, or may have his access terminated entirely. If the content infringes, justice has been done. But if it does not, speech protected under the First Amendment could be removed. We therefore do not require a service provider to start potentially invasive proceedings if the complainant is unwilling to state under penalty of perjury that he is an authorized representative of the copyright owner, and that he has a good-faith belief that the material is unlicensed.488 F.3d at 1112. As the Ninth Circuit emphasized, the requirements of 512(c) are important
safeguards of a user’s First Amendment rights. Section 512(f) is the primary remedy that Congress gave those users to vindicate abuse of those rights. Thus, the “good faith belief” requirement must have some teeth in order to offer users recourse. The requirement that copyright holders face liability for 512 notices when they knew or should have known, based on their actual knowledge of the facts, that material is non-infringing provides that recourse. This is the balance struck by Rossi and Diebold and intended by Congress.
Lenz’s complaint meets these standards. Lenz has pled that, having actual subjective
knowledge of all the relevant facts, Universal sent its DMCA notice to YouTube in bad faith,
knowingly misrepresenting that an infringement had taken place. Am. Cmplt. ¶ 14, 17-20. Lenz
has pled under Diebold that Universal knew or should have known when it sent its notice that
Lenz’s use of the work was non-infringing and by sending their notice, Universal was materially
misrepresenting that knowledge. Id.
Judge Fogel dismissed Lenz's first complaint while granting her leave to amend it and try again. He seemed to reject Universal's argument that there can be no such thing as "self-evident fair use" when he gave Lenz permission to file an amended complaint alleging facts that would back up her claim that her use of Universal's "Lets Go Crazy" was "self-evident" fair use
Judge Fogel also tried his hand at mental contortion when he that Diebold and Rossi were "not necessarily in conflict". He focused on the facts that distinguish the two cases while ignoring the fact that the two cases came to mutually exclusive and unreconcilable legal conclusions. As we will see in later rulings, when Judge Fogel tries to reconcile the unreconcilable he comes off as a man tap dancing on quicksand.
From pages 4 - 5
In Rossi, the plaintiff operated a website that advertised “Full Length Downloadable
Movies” and posted graphics for movies whose copyrights were owned by MPAA members. Id.
at 1001-02. Following the procedures specified in the DMCA, the MPAA sent notices of
infringing conduct to Rossi and his internet service provider. Id. at 1002. Rossi then sued the
MPAA for tortious interference with contract and other related torts. Id. The MPAA argued that
its compliance with the DMCA was a complete defense to Rossi’s claims. Id. Rossi claimed
that the MPAA could not have formed a “good faith belief” that his site was making infringing
material available, because “a reasonable investigation into” the website would have revealed
that users could not actually download movies there. Id at 1003. The Ninth Circuit rejected
Rossi’s reading of the statute and affirmed summary judgment for the MPAA. The court held
that the “interpretive case law and the statutory structure [of the DMCA] support the conclusion
that the “good faith belief” requirement . . . encompasses a subjective, rather than objective,
standard.” Id . at 1004. Discussing 516(f), the court noted that:
Congress included an expressly limited cause of action for improper infringement
notifications, imposing liability only if the copyright owner’s notification is a
knowing misrepresentation. A copyright owner cannot be liable simply because
an unknowing mistake is made, even if the copyright owner acted unreasonably in
making the mistake, Rather, there must be a demonstration of some actual
knowledge of misrepresentation of the party of the copyright owner. Juxtaposing
the “good faith” provision of the DMCA with the ‘knowing misrepresentation’
provision of that same statute reveals an apparent statutory structure that
predicated the imposition of liability upon copyright owners only for knowing
misrepresentations regarding allegedly infringing websites. Measuring
compliance with a lesser “objective reasonableness standard” would be
inconsistent with Congress’s apparent intent that the statute protect potential
violators from subjectively improper actions of copyright owners.
Id. at 1004-05.
Universal argues that Lenz’s complaint alleges an objective reasonableness standard that
the Ninth Circuit has rejected and that accordingly Lenz’s section 512(f) claim must be
dismissed. Lenz contends that Rossi merely examined whether and to what extent a copyright
holder must conduct a factual investigation before sending a DMCA notice in order to meet the
“good faith” standard required by the statue, and did not interpret the term “knowingly.” Lenz asserts that this Court’s decision in Online Policy Group v. Diebold, 337 F. Supp.2d 1195 (N.D.
Cal. 2004) sets forth the proper definition of “knowingly.” In Diebold, this Court held that
“[k]nowingly means that a party actually knew, should have known if it acted with reasonable
care or diligence, or would have had no substantial doubt had it been acting in good faith, that it
was making misrepresentations.” Id. at 1204.
While Diebold was decided prior to Rossi, the cases are not necessarily in conflict.
Diebold is distinguishable based on its facts; although it included a takedown of hundreds of
emails, the defendant failed to identify any specific emails containing copyrighted content, and it
appeared to acknowledge that at least some of the emails were subject to the fair use doctrine.
Here, it is undisputed that the song “Let’s Go Crazy” is copyrighted, and Universal does not
concede that the posting is a fair use. Under Rossi, there must be a showing of a knowing
misrepresentation on the part of the copyright owner. Lenz fails to allege facts from which such
a misrepresentation may be inferred. Lenz also fails to allege why her use of “Lets Go Crazy”
was a “self-evident” fair use. Accordingly, Lenz’s first claim will be dismissed, with leave to
amend.
Lenz's Second Amended Complaint beefed up her original complaint with more evidence that Universal SHOULD HAVE KNOWN that Lenz's video fell within fair use. And the complaint itself states that Universal knew or SHOULD HAVE KNOWN. This would continue to be a major source of conflict between Lenz and Universal. Universal continued to point out (correctly, I believe) that the "SHOULD HAVE KNOWN" standard was not allowed under Rossi.
13. The video bears all the hallmarks of a family home movie—it is somewhat blurry,
the sound quality is poor, it was filmed with an ordinary digital video camera, and it focuses on
documenting Holden’s “dance moves” against a background of normal household activity,
commotion and laughter.
14. Due to the noise and commotion made by the children, the song “Let’s go Crazy”
can only be heard in the background for approximately 20 seconds of the 29-second video and even
then not all that clearly. The portion of the song used is near the song’s end and includes only a
few words of the lyrics.
15. On information and belief, the snippet of “Let’s Go Crazy” that plays in the
background (not dubbed as a soundtrack) of the Holden Video could not substitute for the original
Prince song in any conceivable market. This is due, in part, to the abbreviated nature of the use of
the work, the low audio quality of the ordinary digital video camera Ms. Lenz used, the household
noises, laughter and talking of Ms. Lenz that partially obscure the music, and the sounds made by
the toys that Holden and his sister are pushing around the kitchen during the video.18. Thus, the purpose and character of the video was for Ms. Lenz to amuse her family
and friends with her young child’s nascent dancing ability. This was non-commercial and
transformative, as it made a use of the work that was distinct and separate from its original context
and added additional creative elements, such as Holden’s dancing. Moreover, the amount of the
song taken was approximately 20 seconds of a 3 1/2 minute song – the necessary background of
the almost equally brief video—and the content of the Holden Dance Video did not and could not
substitute for the original song or inflict any harm to the market for the original song.
19. On information and belief, Defendants are sophisticated music industry companies,
have extensive experience with copyright law, and employ staff who are familiar with the Digital
Millennium Copyright Act (including the Section 512 “good faith” requirements and the obligation
to submit Section 512 notices under penalty of perjury), as well as the principles and application of
the fair use doctrine.
20. On information and belief, between February and June 2007, Defendants, and/or
their representatives, viewed the Holden Dance Video and decided to issue a DMCA takedown
notice despite their knowledge that the use of the Prince song in the video was a non-infringing fair
use.
21. On June 4, 2007, Defendants, through their representative, demanded that YouTube
remove the Holden Dance Video from the YouTube website because the video allegedly infringed
a copyright owned or administered by Defendants. By authorizing the demand, Defendants
affirmed under penalty of perjury that the notice of infringement was accurate and that they were
authorized to make the infringement claim arising from the Prince song “Let’s Go Crazy.” See
Notice of Copyright Infringement, attached hereto as Ex. A.28. On information and belief, on or around September 13, 2007, Prince issued a
statement threatening to sue several Internet service providers for copyright infringement as part of
an effort to “to reclaim his art on the internet.” See M. Collett-White, “Prince to Sue YouTube,
eBay Over Music Use,” Reuters, Sept. 13, 2007, downloaded on April 16, 2008, from
http://www.reuters.com/article/internetNew/idUSL1364328420070914?feedtype=RSS&feedName
_InternetNews&rpc=22&sp=true, and attached hereto as Ex. E. On information and belief, the
relevant portions of this webpage have not been substantively modified since September 13, 2007. 29. On information and belief, the statement asserted that “Prince strongly believes that
artists as creators and owners of their music need to reclaim their art.”
30. On or around October 26, 2007, Defendants released the following statement to
ABC News, in response to a request for comment regarding the take down of the Holden Dance
Video:
Prince believes it is wrong for YouTube, or any other user-generated site, to
appropriate his music without his consent. That position has nothing to do with any
particular video that uses his songs. It’s simply a matter of principle. And legally,
he has the right to have his music removed. We support him and this important
principle. That’s why, over the last few months, we have asked YouTube to remove
thousands of different videos that use Prince music without his permission.
See J. Avila et al, “The Home Video Prince Doesn’t Want You to See,” ABC News, October 26,
2007, downloaded on November 7, 2007, from http://abcnews.go.com/print?id+3777651 and
attached hereto as Ex. F.
31. On information and belief, Prince himself demanded that Universal seek the removal
of the Holden Video. On information and belief, Universal sent the DMCA notice at Prince’s
behest, based not on the particular characteristics of the Holden Video or any good-faith belief that
it actually infringed a copyright but on its belief that, as “a matter of principle,” Prince “has the
right to have his music removed.”34. Lenz’s use of the Prince song “Let’s Go Crazy” is a self-evident non-infringing fair
use under 17 U.S.C. § 107. This is in part because the Holden Dance Video non commercially
transforms the song into partially obscured background music for a family video about a toddler
just learning to dance, uses only a small, nonsubstantial portion of the original work, and does not
substitute for the work or harm any market for the work.
35. On information and belief, Defendants had actual subjective knowledge of the contents of the Holden Dance Video and that it did not infringe any Universal copyrights on the
date they sent YouTube the takedown notice regarding the Holden Dance Video. With this actual
subjective knowledge, Defendants acted in bad faith when they sent the takedown notice,
knowingly and materially misrepresenting that they had concluded that the video was infringing.
36. In the alternative, Defendants should have known, if they had acted with reasonable
care or diligence, or would have no substantial doubt had they been acting in good faith, that the
Holden Dance Video did not infringe any Universal copyrights on the date they sent YouTube their
complaint under the DMCA.
37. Defendants violated 17 U.S.C. § 512(f) by knowingly materially misrepresenting
that Holden Dance Video infringed Universal’s copyright.
From page11:
But the Court does not even need to reach that issue in order to dismiss the SAC. Plaintiff’s Section 512(f) claim is premised entirely on her allegation that Universal sent YouTube a DMCA notice (i.e. a notice “under this section,” 17 U.S.C. § 512 (f)). Try as she might, Plaintiff cannot convert Universal’s notice into something that it is not by mischaracterizing that notice in her SAC. Universal sent its notice pursuant to YouTube’s Terms of Use and expressly stated in that notice that its “use of this form, as required by YouTube, is meant to facilitate YouTube’s removal of the infringing material listed above and is not meant to suggest or imply that YouTube’s activities and services are within the scope of the DMCA safe harbor.” SAC Ex. A at 6 (emphasis added). Universal was explicit on this point because
Universal does not agree that YouTube is eligible for protection under the DMCA’s “safe
harbors,” or that Universal has to send notices “under” the DMCA in order to insist on the
removal of infringing material.
Universal claims that Section 512(f) does not pertain to them because they didn't wrap up their complaint in a nice neat package that says "THIS IS A DMCA COMPLAINT". They want to enjoy the benefit of using a DMCA-like complaint to remove videos, but they don't want to have to deal with the 512(f) penalties that come with irresponsibly using the DMCA. Universal's notice looked like a DMCA complaint. It had the same purpose as a DMCA complaint. And it was sent to an email address reserved for receiving DMCA complaints. But Universal claims that the notice they sent YouTube wasn't really a DMCA complaint. In other words, they are arguing that if it looks like a duck, walks like a duck, and quacks like a duck then it is an aardvark.
From page 7:
Plaintiff continues to claim that Universal may be liable on the ground
that it “should have known, if [it] acted with reasonable care or diligence,” that her posting was a
“self-evident non-infringing fair use under 17 U.S.C. § 107.” Second Amended Complaint
(“SAC”) ¶¶ 34, 36. “Should have known” and “reasonable care or diligence” are objective
standards of reasonableness that fail under this Court’s Order and Rossi. Moreover, there is not,
and never has been, such a thing as a “self-evident non-infringing fair use.” That is a standard
that finds no support in the law. The reason that standard has no support is very simple:
“[u]sually, fair use determinations are so clouded that one has no sure idea how they will fare
until the matter is litigated.” 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright
§ 12B.08 at 12B-93 n.16 (2007). Rossi and Section 512 make it clear that copyright owners do
not have to engage in such conjecture in order to avoid a Section 512(f) damages claim.
Plaintiff does not cure her pleading shortcomings by making the conclusory allegation (on
“information and belief” no less) that Universal had actual knowledge that its notice
misrepresented that Plaintiffs video was infringing (SAC ¶ 35), particularly since this allegation is
based on the same “self-evident” fair use standard that just does not exist. Plaintiff was required
to plead facts supporting her allegation that Universal had actual knowledge that it was making a
knowing misrepresentation. A made-up legal standard is not a substitute for facts.
Lenz certainly pleaded enough facts to support an allegation that Universal SHOULD HAVE KNOWN that their complaint was bogus. But Universal contends this is not enough. They claim that she should have to plead enough facts to support the claim that they ACTUALLY KNEW their complaint was bogus when they filed the complaint. This is an extraordinary thing to do before the discovery process. How can she possibly provide the evidence of their ACTUAL STATE OF MIND without having an opportunity to subpoena relevant documents and question them under oath? This sets the bar for 512(f) cases incredibly high. There will be very few cases in the real world where the copyright holder is going to send their adversary an email stating "I'm going to send a DMCA complaint against your video, even though I know it falls under fair use. NYAH NYAH NYAH NYAH NYAH NYAH!"
Pages 7- 8:
Finally, Plaintiff’s misconstruction of Section 512 is not limited to the definitions of
knowledge or misrepresentation, but also extends to the relief the statute allows. Section 512(f)
allows only those damages that a user incurs “as a result of” the internet service provider taking
material down in response to a knowing misrepresentation. Yet, Plaintiff has not alleged any
such damages, nor could she since the sum total of her effort to respond to Universal’s notice was
a five-paragraph email asking that the video be re-posted (as it has been). SAC ¶ 27; Request for Judicial Notice (“RJN”) Ex. 1. Instead, Plaintiff seeks damages for “harm to her free speech
rights under the First Amendment” (SAC ¶ 38) and an injunction enjoining Universal from
“bringing any lawsuit” against Plaintiff in connection with the video. Plaintiff ignores the fact
that neither Universal nor YouTube is a state actor; thus, there can be no First Amendment
violation.
Wrong!!! Universal claims that because it is a private party and not a state actor, it can not be held responsible for damages done to Lenz's First Amenedment rights. What Universal ignores is that the DMCA has, in effect, deputized private citizens and given them powers previously reserved only to the state or the judicial system (which itself is a branch of the state). If somebody writes a libelous book about me, I can't just uniliatteraly round up and impound all unsold copies of the book. I actually have to go to Court and convince the Court that the book was indeed making defamatory false statements about me. If I am persuasive enough then the Court would issue an injunction against further publication of the book. Similarly, before the DMCA was passed, a copyright holder would actually have to get a Court to issue an injunction to stop publication of material that was infringing on his copyright. Copyright law and libel law differed in that Courts almost automatically granted preliminary injunctions to stop the publications of allegedly copyright infringing works, whereas they required a higher standard of evidence before issuing injunctions to stop the publications of allegedly libelous works. Yet despite that difference, there can be no denying that before the DMCA only the State via the judicial system had the authority to halt alegedly libelous or copyright infringing work.
The DMCA has given the power that was once reserved for the State to both the wise and the stupid, the lawyer with 45 years experience in First Amendment law and the 14 year old kid, pillars of the community and pedophiles who want to do everything they can to hide evidence of their perversion. The DMCA has great potential for abuse, and thus great potential for First Amendment harm. Suppose the Courts were to rule that there could be no First Amendment violation because DMCA complaints were filed by private parties. Such a ruling would invite abuse. Crooks would file DMCA complaints against those who posted evidence exposing them online, knowing that no Court could hold them responsible for abusing the First Amendment rights of their adversaries. Pedophiles could rest well at night knowing that they could DMCA any incriminating evidence about them off the internet. Manufactures of faulting voting machines could issue takedown notices content in the knowledge that they would not be held accountable for stomping on anyone's First Amendment rights.
Somewhat relevant is New York Times v. Sullivan. Sullivan sued the New York Times claiming that they had libeled him. There was some question regarding whether the article published in the Times was about Sullivan, but the Alabama Trial Court ruled that if the jury found that the article did indeed refer to him, then what was written was libelous per se and that nothing more needed to be proven to award Sullivan damages. The judge in the Trial Court rejected the New York Times' "contention that his rulings abridged the freedoms of speech and of the press that are guaranteed by the First and Fourteenth Amendments" (The relevant portion of the Fourteenth Amendment reads "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.")
The Alabama Supreme Court upheld the Trial Court, and the Supreme Court directly addressed the question of whether the Fourteenth Amendment is directed only at state action or whether it can in some instances be directed at private action.
We may dispose at the outset of two grounds asserted to insulate the judgment of the Alabama courts from constitutional scrutiny. The first is the proposition relied on by the State Supreme Court -- that "The Fourteenth Amendment is directed against State action, and not private action." That proposition has no application to this case. Although this is a civil lawsuit between private parties, the Alabama courts have applied a state rule of law which petitioners claim to impose invalid restrictions on their constitutional freedoms of speech and press. It matters not that that law has been applied in a civil action and that it is common law only, though supplemented by statute. See, e.g., Alabama Code, Tit. 7, §§ 908-917. The test is not the form in which state power has been applied but, whatever the form, whether such power has, in fact, been exercised. See Ex parte Virginia, 100 U.S. 339, 346-347; American Federation of Labor v. Swing. 312 U.S. 321.
In other words, it was impermissable for a private party to wrongfully infinge on the First Amendment rights of others via State law and the Court System. Why then, would there be no First Amendment violation if a private party abused the power given to him by the State to abridge the rights of others to speak? Isn't the potential for First Amendment abuse even greater under the DMCA than through private party litigation mediated by the court system? At least in the court system there is a judge with legal training who will (theoretically) screen out the worst cases of abuse.
Incidentally, the law firm that is defending Universal Music Corportaion is Munger, Tolles & Olson LLP. If some malicious troll purjured himself and sent the ISP that hosted Munger's website a totally bogus DMCA claiming that they were infringing on his copyright, and if Munger's ISP removed their site as a response and didn't restore it until 10 business days after they sent a counternotice, would they be claiming that there was no First Amendment violation, simply because the troll was not a state actor?
Universal rehashes the argument that the Rossi's subjective standard should apply and not Diebold's objective standard. In other words, they claim Lenz's case should be thrown out because she continues to plead that they SHOULD HAVE KNOWN that her use of their music was fair use.
From page 13
Plaintiff’s continued reliance on the objective standards ignores this Court’s explanation for why
a conflict did not necessarily exist between Diebold and the Ninth Circuit’s later ruling in Rossi.
It is not because Diebold’s objective standards are reconcilable with Rossi’s actual knowledge
standard – they are not – but rather because “Diebold is distinguishable based on its facts.” Order at 5 (emphasis added). In Diebold, the defendant’s notice listed “hundreds of emails,” but “the defendant failed to identify any specific emails containing copyrighted content”; moreover, the defendant “appeared to acknowledge that at least some of the emails were subject to the fair use doctrine.” Id. (emphasis added). As a result, based on its facts, Diebold satisfied the Rossi
standard requiring that the plaintiff show that the defendant had actual, subjective knowledge it
was making a misrepresentation. In contrast, here, Universal has not admitted it made a
misrepresentation, much less that it had actual knowledge that it was making a misrepresentation at the time it sent the notice to YouTube. Indeed, as this Court explained, “it is undisputed that the song ‘Let’s Go Crazy’ is copyrighted, and Universal does not concede that the posting is a fair use.” Id. Accordingly, Diebold provides no support for Plaintiff’s flawed attempt to reassert the standard of objective knowledge that the Court already rejected on the last motion to dismiss.Universal is right on target when they claim that the legal standards set forth in Rossi and Diebold are irreconcilable. The standards promulgated by the two cases are mutually exculsive, and any claim to the contrary is just plain wrong. This is a reason for arguing that Rossi must be overturned in order to avoid unacceptable First Amendment damage. I hope that Lenz will appeal if she does not win in District Court and that she will make this the centerpiece of her appeal. If that doesn't happen, then I hope others who have suffered 512(f) will vigorously contest the subjective standard of Rossi. My motivation for publishing this critique of the Lenz case is to provide ammunition for lawyers who wish to contest the subjective standard.
By relying exclusively onfair use as a defense, Plaintiff necessarily concedes that her use does infringe copyright – which means that everything in Universal’s notice was true. Fair use is an affirmative defense to conduct that otherwise infringes one or more of the exclusive rights of copyright under Section 106. Supreme Court and Ninth Circuit precedent both make clear that a court does not reach the question of fair use under Section 107 until the court first concludes the use infringes under Section 106. See, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994); Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1163 (9th Cir. 2007). Given Plaintiff’s concession that her use of “Let’s Go Crazy” in her posting does infringe, Plaintiff cannot plausibly contend that Universal knew it was making a material misrepresentation in its notice.
BULLSHIT ALERT! BULLSHIT ALERT! BULLSHIT ALERT! Section 107 of the copyright law states that "the fair use of a copyrighted work. . . is not an infringement of copyright." I don't know how much more clearly the law could state the fact that Lenz's use of Universal's music in the background was not an infringement. Lenz does not deny Universal's music was playing in the background. What she does deny, and what the law clearly supports, is that NO INFRINGEMENT TOOK PLACE. PERIOD! To argue that Fair Use doesn't happen until a Court rules that the use was fair use is slick sophistry at its slipperiest. It would be like arguing that a tree doesn't fall in the woods unless someone is around to hear it.