Despite a judge's doubts, a Pennsylvania homemaker appears to have a reasonably strong case that Universal Music acted in bad faith when it asked YouTube to remove a video showing her toddler son dancing to a song by Prince.

Stephanie Lenz overcame a preliminary hurdle earlier this month when U.S. District Judge Jeremy Fogel denied Universal's motion to dismiss her case alleging it misrepresented that the video infringed on its copyright in the song “Let's Go Crazy.”

The Digital Millenium Copyright Act “requires a copyright owner to consider the fair use doctrine in formulating 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,'” Fogel said in an opinion that several commentators have depicted as a major victory for fair use rights.

The case can now proceed toward trial on the issue of whether Universal misused the DMCA by “knowingly materially misrepresent[ing]” that Lenz's video was infringing.

Under the “subjective bad faith” standard of Rossi v. Motion Picture Ass’n of America, 391 F.3d 1000 (2004), a copyright owner cannot be liable for misrepresentation

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 on the part of the copyright owner.

Fogel was skeptical that Lenz will prevail, saying he had “considerable doubt that Lenz will be able to prove that Universal acted with the subjective bad faith required by Rossi, and following discovery her claims well may be appropriate for summary judgment.” Any damages in the case, he added, “may be nominal.”

Lenz's theory is that Prince “is notorious for his efforts to control all uses of his material on and off the Internet” and Universal has a blanket “policy” of appeasing him.

“Universal sent the DMCA notice at Prince’s behest, based not on the particular characteristics of [the 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,’” she alleged in her complaint.

Rossi involved the operator of a website called internetmovies.com who alleged that the MPAA improperly sent him a takedown notice. The 9th U.S. Circuit Court of Appeals dismissed the case, citing statements on the site that included “Join to download full length movies online now! new movies every month”; “Full Length Downloadable Movies”; and “NOW DOWNLOADABLE.”

“These representations on the website led the MPAA [ ] to conclude in good faith that motion pictures owned by MPAA members were available for immediate downloading from the website,” the court said.

But Lenz has a better chance of showing bad faith since there is absolutely nothing about her 29-second video that could have possibly suggested infringement to Universal. As WebTVwire.com says, “It would take someone with a complete disregard of the realities of copyright law to consider this infringing.”

And any sanction for such disregard should be more than "nominal."

By Matthew Heller
8/27/08