Lenz v. Universal Music, No. 13-16106 (9th Cir. filed 9/14/2015) [decision].
Copyright owners must consider whether allegedly infringing use is "fair use" before sending takedown notices under the DMCA, holds the 9th Circuit. In the so-called "dancing baby case," Plaintiff alleged that Universal Music violated 17 USC 512(f) by misrepresenting in a takedown notice that a home video of her son dancing to a Prince song and posted on YouTube constituted an infringing use of a portion of a "Prince" composition. The Court held that the DMCA requires copyright owners to consider fair use before sending a takedown notice, and that failure to do so raises an issue of fact whether the copyright owner formed a subjective good faith belief that the use was not authorized by law. Available theories of good faith belief are actual knowledge, and willful blindness. "Universal faces liability if it knowingly misrepresented in the takedown notification that it had formed a good faith belief the video was not authorized by the law, i.e. did not constitute fair use." A prevailing plaintiff in such a case is entitled to nominal damages. Ultimately, the 9th Circuit affirmed the district court's denial of the cross-motions for summary judgment, such that the case would proceed to trial on the issue of whether Universal had actual knowledge, and the amount of damages.
Showing posts with label Section 512. Show all posts
Showing posts with label Section 512. Show all posts
April 9, 2015
Fraudulent DMCA Take-Down Notice May Be Basis For Claim If iTunes Stores Music At Direction Of A User
Distribuidora De Discos Karen, C por A. v. Seijas, No. 13 Civ. 5200 (NRB), 2015 BL 93133 (S.D.N.Y. Mar. 26, 2015).
Denying defendants' motion to dismiss, the Court held that: (1) a misrepresentation claim under the DMCA may be predicated on a technically defective take-down notice; (2) a misrepresentation claim under the DMCA must be predicated on a take-down notice that is not directed towards activity that the DMCA protects; and (3) it was premature to decide whether Apple stores music on iTunes "at the Direction of a User." Accordingly, a notice sent by Defendants to iTunes stating that certain recordings had not been licensed for distribution can be the subject of a misrepresentation claim under the DMCA even if it did not meet all the statutory requirements for such a notice, but, such a claim could only apply if the notice was “directed at ‘storage at the direction of a user,' ” which might or might not have been true in the instant case.
Here, defendants and plaintiffs disputed who owned certain publishing and sound recording rights. The artists' counsel sent Apple a take-down notice, saying that “no license has been issued” with respect to the recordings. Apple then dropped the subject recordings from iTunes, and plaintiffs sued, alleging misrepresentation under the Digital Millennium Copyright Act of 1998, 17 U.S.C. § 512(f). The DMCA creates a notice-and-takedown procedure for allegedly infringing copies of works posted online, and subsection (f) creates a cause of action for sending fraudulent takedown notices. Defendants moved to dismiss for failure to state a claim. The Court found that the communication to Apple “was not so deficient as to fall outside the reach of subsection 512(f).” But, the remaining issue was whether iTunes falls within the section 512(c) safe-harbor, to wit: "whether Apple stores music on iTunes 'at the direction of a user,' 17 U.S.C. § 512(c) (1)". The Court found that "the complaint simply does not state enough facts about iTunes for us to say what happens behind the scenes, so we cannot decide at the present stage whether iTunes stores music at the direction of users." Accordingly, the motion to dismiss was denied.
Denying defendants' motion to dismiss, the Court held that: (1) a misrepresentation claim under the DMCA may be predicated on a technically defective take-down notice; (2) a misrepresentation claim under the DMCA must be predicated on a take-down notice that is not directed towards activity that the DMCA protects; and (3) it was premature to decide whether Apple stores music on iTunes "at the Direction of a User." Accordingly, a notice sent by Defendants to iTunes stating that certain recordings had not been licensed for distribution can be the subject of a misrepresentation claim under the DMCA even if it did not meet all the statutory requirements for such a notice, but, such a claim could only apply if the notice was “directed at ‘storage at the direction of a user,' ” which might or might not have been true in the instant case.
Here, defendants and plaintiffs disputed who owned certain publishing and sound recording rights. The artists' counsel sent Apple a take-down notice, saying that “no license has been issued” with respect to the recordings. Apple then dropped the subject recordings from iTunes, and plaintiffs sued, alleging misrepresentation under the Digital Millennium Copyright Act of 1998, 17 U.S.C. § 512(f). The DMCA creates a notice-and-takedown procedure for allegedly infringing copies of works posted online, and subsection (f) creates a cause of action for sending fraudulent takedown notices. Defendants moved to dismiss for failure to state a claim. The Court found that the communication to Apple “was not so deficient as to fall outside the reach of subsection 512(f).” But, the remaining issue was whether iTunes falls within the section 512(c) safe-harbor, to wit: "whether Apple stores music on iTunes 'at the direction of a user,' 17 U.S.C. § 512(c) (1)". The Court found that "the complaint simply does not state enough facts about iTunes for us to say what happens behind the scenes, so we cannot decide at the present stage whether iTunes stores music at the direction of users." Accordingly, the motion to dismiss was denied.
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