Universal’s Princely Blunder
How should copyright owners be penalized for sending takedown notices to Web sites posting intellectual property that falls under “fair use” as described by the Digital Millennium Copyright Act?
That’s the question being raised after the latest court decision regarding Stephanie Lenz’s 29-second video clip of her son dancing to Prince’s “Let’s Go Crazy” that she posted on YouTube in February 2007.
In June 2007, Universal Music Corp. sent YouTube a takedown notice claiming the video was a copyright infringement. YouTube complied, and the label as well as the artist formerly known as a symbol probably thought that was the end of the matter.
But Lenz went on the offensive and sent YouTube a counternotice claiming the use of the song fell under “fair use.” In response, YouTube re-posted the video.
But the case was far from over.
In 2008 the Electronic Frontier Foundation sued Universal on Lenz’s behalf, claiming Universal’s lawyers should have considered whether the mom’s use of “Let’s Go Crazy” fell under fair use before they started issuing takedown orders.
Adding to the legal predicament was Prince and Universal’s own statements released in late 2007 saying the label and the artist were mounting a campaign to remove from the Web all user-generated content involving the Purple One. Lenz cited the effort as an example of the label issuing takedown notices in bad faith, that is, using its position as a copyright holder to bully Web sites into removing content even though the material is posted legally under fair use.
In an almost ironic twist of legal fate, the part of the DMCA that sets guidelines for intellectual property owners issuing takedown notices is also the part that Lenz is using in her legal battle against Universal.
Called Section 512, the legalese is broken down into provisions, such as 512(a) protecting ISPs from liability when their users post copyrighted material and 512(c), which describes how content owners should issue takedown orders.
Then there’s 512(f), which states that content owners who knowingly abuse the process by issuing takedown orders for legally posted content can be held liable for costs and attorney’s fees.
Now the question is whether Universal owes Lenz anything.
On Feb. 26, U.S. District Judge Jeremy Fogel ruled that Lenz could be eligible to receive limited compensation from Universal. That is, if she can prove her case.
According to The Record at Law.com, lawyers representing Universal argued that YouTube’s removal of the clip could not have caused Lenz any real damages. However, Judge Fogel disagreed, saying that having to prove damages would make the DMCA’s provision for punishing those who abuse the takedown process pretty useless.
“Requiring a plaintiff who can make such a showing to demonstrate in addition not only that she suffered damages but also that those damages were economic and substantial would vitiate the deterrent effect of the statute,” Fogel wrote.
There is disagreement about what constitutes damages in such a case, and what damages Lenz incurred when YouTube complied with Universal’s original request to remove the video. After all, Lenz probably didn’t lose any money when YouTube removed the video.
However, the EFF says its litigation fees totaled more than $400,000. Whether the organization can recoup any or all of that amount will probably be settled in court.
Meanwhile, the EFF is calling Fogel’s ruling a victory.
“I think what’s important here is that someone who’s had their speech chilled can move forward and bring a lawsuit under 512(f),” EFF lawyer Corynne McSherry said.
TiVo Premiere
TiVo, the miraculous machine that changed the way we watch television, has a new line of DVRs coming out this spring as the company integrates TV with Internet content in an attempt to regain its dominance in the home recorder market.
Founded in 1997, TiVo spearheaded the DVR revolution with the ability to not only record shows, but to search TV listings for programs similar to what you were already recording. TiVo was your little broadcast pal in a box – an electronic assistant helping you navigate cable and satellite’s almost endless offerings of channels, channels and more channels.
But cable companies offering their subscribers generic DVRs helped reduce TiVo’s market share. Now the company wants to reclaim its position at the top when the brand was virtually synonymous with digital TV recording.
Of course, TiVo owners will tell you their machines are better than what cable companies are offering. However, the company’s user base, which peaked at 1.7 million in 2008, has shrunk to 1.5 million.
Plus, TiVo has only had one year where it recorded a net profit. That was for the fiscal year ending January 31, 2009. However, the profit wasn’t from DVR sales and subscriptions, but instead resulted from when the company won a patent lawsuit against Dish Network Corp.
TiVo Premiere is expected to become available in stores in early April, marking the company’s first product launch in two years. It will combine Internet content with what’s coming down the TV pipeline.
The top model is the $499 Premiere XL, which stores up to 150 hours of high-def television on its 1-terabyte hard drive. If the $500 price tag is a bit too rich for your blood, there’s the $299 Premiere that stores up to 45 hours of HD TV on a 320GB hard drive.
As to combining Internet content, a search using TiVo Premiere could result in programs available through TV broadcasts and content, such as movies, made available through online sources such as Amazon or YouTube.
However, mixing Internet content with TV offerings isn’t unique. Many Blu-ray players offer some connectivity, usually via a home wireless network. Plus, buying a TiVo DVR isn’t enough. You must subscribe to the TiVo service in order to take advantage of its features. Prices range from $12.95 per month to $299 for three years.
But even though TiVo has its work cut out for him, the company’s headman is confident he and his people are on the right track.
“This is a whole new chapter in TiVo’s evolution,” company CEO Tom Rogers said. “We’re moving toward ‘get anything you want whenever you want it.’”
