August 14, 2007

Digital Millennium Lawsuit Against Universal Music Publishing

Interview with Marcia Hoffman, a staff attorney for the Electronic Frontier Foundation (EFF) www.eff.org. Ms. Hoffman is the lead attorney representing YouTube contributor, Stephanie Lenz, against Universal Music Publishing Group. Universal Music recently shut down Ms. Lenz' YouTube video of her toddler son dancing to a Prince song on the internet with a bogus take down notice to YouTube.

ANNOUNCER: Welcome to the VTalk Radio Tech Spotlight with your host, John Bentley.



JOHN: Welcome to VTalk Radio's Tech Spotlight. This is your host, John Bentley. Today we are speaking with Ms. Marcia Hoffman. Marcia is a staff attorney for the Electronic Frontier Foundation, known affectionately in the internet community as EFF and found at www.eff.org. Ms. Hoffman is the lead attorney representing You Tube contributor, Stephanie Lenz, against Universal Music Publishing Group. Universal Music recently shut down Ms. Lenz' You Tube video of her toddler son dancing to a Prince song on the internet with a bogus take down notice to You Tube. Marcia welcome to the program.

MARCIA: Hi there. Thanks for having me on.

JOHN: First of all, can you tell us what is the Electronic Frontier Foundation?

MARCIA: The Electronic Frontier Foundation is a civil liberties organization based in San Francisco which that champion digital rights, most particularly individual rights online including things like online free speech and privacy, but also in this case, we endorse people's to use copyrighted material in a non-infringing way online.

JOHN: And how long has the EFF been around?

MARCIA: We've been around since 1990.

JOHN: And how long have you been with this organization?

MARCIA: I've been with them for about a year.

JOHN: All right, let's jump right in to the Lenz case. Tell us a little bit about the Lenz vs Universal Music Publishing case.

MARCIA: Sure. In this case, our client, Stephanie Lenz, took a video of her children; her toddler son, Holden, and her slightly older daughter running around their kitchen and playing one day. She explained to us that her children had heard the Prince song, "Let's Go Crazy" during the Superbowl halftime show shortly before this video was shot, and so she was playing it for them because they really enjoyed it. As they were running around the kitchen, she pulled out her digital camera and shot a very short video, about 29 seconds, in which she filmed her son, Holden, just kinda dancing to the music and so little that it's not even really dancing, he was just sort of bouncing to the music, and she thought the video was so charming and cute that she went ahead and posted it on You Tube to show her family and friends. For those unfamiliar with You Tube, it is a video sharing website that's very popular and hosts thousands upon thousands if not millions of videos. And Universal Music Publishing Group basically owns the copyright we believe in this song, and it sent You Tube a notice saying that Ms. Lenz' use of this song which really was just playing in the background while her son danced was an infringement of the companies copyright. Under law in the United States, a law called The Digital Millennium Copyright Act, copyright owners can send notices like this, but they have to attest under penalty of perjury that they own the copyright or they're authorized to make a copyright claim on behalf of an owner and that they believe that the use of the copyrighted infringing and that the material should come down for that reason. So, Ms. Lenz learned shortly thereafter that her video had been taken down by You Tube as a result of Universal's claim and she came to us and we believe very firmly that her use of this material is not an infringement of copyright and so we're representing her in the suit against Universal.

JOHN: Well, I've taken a look at the video myself, and boy it seems innocent enough. You can't tell me that there isn't other clips on You Tube or any number of other sites that have music in the background just like this one. Are there other cases?

MARCIA: There is no question about that. There are plenty of videos all over the place that use music like this in the background and most of them do not result in the video being taken down because in many, many cases and this one, it is permitted by law.

JOHN: Well, do companies like Universal Music scan sites like You Tube looking for this kind of stuff ?

MARCIA: They do. And, you know, I think that we certainly wouldn't say that that's illegitimate thing. You know there are many cases on You Tube and other sites on the internet where there really are infringing uses of material and copyright owners are entitled to protect their interests and make sure that you know their copyright protected material isn't being used in ways that violate the law. But, of course, along with that standing comes a responsibility to make sure that when you make a take down claim, it's not a take down claim that isn't supported by the law and that's what we think has happened here.

JOHN: Well, being a musician myself, I always understood that somebody can not take a song that I've copyrighted and make a profit off of it. How is this lady making a profit off of this little clip of her toddlers dancing on You Tube?

MARCIA: Well, that's really part of the situation here. Very a much a part of the whole picture. The way that copyright law works is that while your creative works may be protected and other people can't use them in ways you don't like, people really do have a legitimate right to use your material in certain ways without your permission, and under the law, you have a right to make what's called fair use of other people's copyrighted materials. And fair use is a fairly hazy issue. There's not a clear bright line test for what is fair use and what's not, but basically it's a matter of weighing all of the factors and deciding whether something really is not permissible and whether it is. Basically if a judge is looking at this sort of situation what he would do is he would look at the purpose and character of the use. Basically try to figure out if you're just ripping off what somebody else has already done or if you're actually taking it and doing something new with it so as to create a new work. The judge might also look at basically the nature of the copyrighted work. Is it just really some factual material or is it something that is you know really artistic in nature. Something that's very different from just the basic facts of life. Another thing a judge might look at is the amount and fantiality of the use. So are you using the entire copyrighted work or are you using just a little bit of it. And are you basically taking the heart of the work and claiming that it's your own, or are you just taking a little bit that's you know incidental to the main point of it. And the last thing a court might look at is basically the affect of the use on the market for the work or the value of the work. Are you basically making it impossible for the copyright owner to make a profit off of the work that he has rights to. So in situations like that, you know, certainly there's a good chance that use of a work that basically makes it impossible for the copyright owner to make any profit would be found to be infringing, but obviously that's not the case here, and nobody would suggest that Ms. Lenz' video is a substitute for Prince's song.

JOHN: Well, I can see why you might get involved in something like this. It certainly seems like Universal Music Group doesn't have much of a foot to stand on in this debate, but how does EFF get involved in a matter like this?

MARCIA: Well, you know, we're very concerned about situations like this. We want internet users to feel free to make the full use of the internet that they can. And to take other's material and you know make transformative uses of it and create new things. I mean that's one of the main goals behind copyright law is to encourage innovation and we feel that the internet is an incredible capability for distributing your work. What we really worry about in situations like this, is that when people make frivolous take down claims like this, it really discourages internet users from using sites like You Tube to distribute their work and you know many people I think receive a take down notice like this or hear that one has been made and even if they're on good legal footing, they're very intimidated by the fact that a big company is upset with something that they've done and has taken some sort of a legal action against them and so we just want to make sure that people understand that they have certain rights to do certain things with copyrighted material and we don't want them to feel that they're so intimidated that they would not like to distribute works that they've made to others. You know it's also a free speech issue. We don't want people to feel that they can't say certain things or make certain criticisms about people online because they're constantly fearing that they may be subject to some legal action for it.

JOHN: We are speaking to Marcia Hoffman of Electronic Frontier Foundation and you are listening to VTalk Radio's Tech Spotlight. We're gonna take a moment for a few messages, we'll be right back.

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JOHN: Welcome back to VTalk Radio's Tech Spotlight. Today we are in the studio with Ms. Marcia Hoffman of Electronic Frontier Foundation. She's a staff attorney there. They're based out of Washington, D.C., where she focuses on government transparency and civil liberty issues. Along with her colleague, David Sobel, she established EFF's FOIA litigation for accountable government project known as FLAG. Prior to joining the EFF, Marcia was director of the open government project at the Electronic Privacy Information Centers known as EPIC where she spearheaded Epic's efforts to learn about emerging policies in the post-911 era and was lead counsel in several Freedom of Information Act lawsuits. Documents made public through her work have been reported by the New York Times, Washington Post, Nashville Public Radio, Fox News, and CNN among others. She's a graduate of the University of Dayton School of Law and Mt. Holly Oak College. Welcome back to the program, Marcia.

MARCIA: Thank you.

JOHN: Well, we've been talking about this Stephanie Lenz and Universal Music litigation going on here. You've given us a great deal of information about this subject. The question I want to ask you. You've kind of touched on it a little bit, but maybe you could expound on it is to the average listener to Ms. Lenz' family video may not seem that important. Explain to our listeners why these rights are worth protecting and worth litigating over.

MARCIA: We think these rights are worth protecting and worth litigating over because we want to make the internet safe for people to speak freely and to post their work. And we're very concerned about the abuse of copyright law to silence people and to try to ensure that they do not use material in a way that companies don't like even if it's legal. And so, we want to draw visibility to cases like Ms. Lenz' because we want to make sure that people know that they have the right to use material online in certain ways as long as they're not violating the law and we want people to be aware of what they can do and can't do and we also want copyright owners and even non-copyright owners who would abuse copyright law to silence critics and others to know that they can't simply make copyright law take down notices when they see something they don't like.

JOHN: Hey Marcia, what do you expect to happen next in this lawsuit and what outcome are you seeking?

MARCIA: Well, now it's up to Universal to respond to our complaint and they haven't filed anything yet, but we expect that shortly we will hear some response from them and then the litigation will go forward from there.

JOHN: And what outcome are you seeking?

MARCIA: Well, we're hoping that eventually a judge will declare that Ms. Lenz did not violate copyright law in any way and we're hoping that Universal will pay for her attorney's fees and any other costs that she might incur and basically we just want to ensure that we have a very good outcome that makes some law that other people can use in the future to ensure that people like Ms. Lenz are not intimidated into taken material down and fully exercise their free speech and fair use rights.

JOHN: Now, as I understand this video was taken down, but it's been put back up again.

MARCIA: That's correct.

JOHN: Is that because it's in litigation so you can instill kind of a debate? How can they put it back up again?

MARCIA: Under the Digital Millennium Copyright Act, a copyright owner is allowed to send a notice to an internet service provider saying you're hosting infringing material on my website, you need to take it down. And, you know, as I already mentioned they have to attest under penalty of perjury that they have a good faith belief that this is true. When a service provider gets a notice like that, the service provider has every incentive to take the material down because if the provider does that, then the provider can't be sued for violating the law. However, if the person who posted the material believes very strongly that he or she didn't do anything wrong, then that person can make what's known as a counter-notice and say, no, no, no, I'm completely ok here under the law and this material should go back up. Then the service provider can post the material again and not worry about posing itself to liability. It's in the clear at that point. So that's what happened here. After Universal sent the take down notice, and Ms. Lenz did what we call a counter-noticing, and basically told You Tube that she did not believe she was violating anybody's copyright and so You Tube posted the video again. And that's why it's back up. But it was down for a total of 6 weeks approximately, so during that time, she was not permitted - because of Universal's actions to share her video with her family and friends and we believe her free speech and fair use rights were chilled during that time and that's really where the damage is.

JOHN: Well, I wanna congratulate you and thank you and the Electronic Frontier Foundation for your great work on behalf of all of us in protecting our free speech rights. It's good to know that we got somebody in our corner when it comes to this kind of thing.

MARCIA: Thank you very much.

JOHN: How does someone support the EFF and it's mission?

MARCIA: Become a member. Go to our website www.eff.org and you can sign up to become a member and support what we're doing and basically all of our victories are your victories too and we've got thousands of members so far. I think we've got something like 12,000 members at this point and renewing helps us out a great deal. And so come to our website and enjoy.

JOHN: I'd like to personally thank you, Marcia Hoffman, for joining us today on VTalk Radio's Tech Spotlight.

MARCIA: Thank you very much.

JOHN: Good luck with the Lenz case. We are VTalk Radio. You've been listening to the Tech Spotlight. Thanks for joining us today; have a great afternoon.

ANNOUNCER: You have been listening to the VTalk Radio Tech Spotlight; only on www.vtalkradio.com. Radio for the 21st Century.

COMMENTS

Hi,

I totally agree with Marcia and believe that no one is trying to rip off corporations like Universal from continuing to make large profits out of CD sales. Although my real concern here is that neither John nor Marcia spoke anything about Youtube's role and responsibility in the whole thing. I mean to ask if Youtube also has a responsibility to monitor such video posts and other items to check for infringing materials lurking about their domain. If so, then they obviously would have done something about it prior to receiving a take down notice. However, if such is the case and they did not, is it safe to assume that there was actually nothing wrong with the video being posted and that Marcia is spot on when suggesting that these are just intimidatory tactics employed by the big guys into trying to make a point when there really isn't one.

I would also like to ask if the law needs to be amended to allow such use, seamlessly and thereby to substantiate beyond reasonable doubt as to what amounts to fair use and what exactly amounts to a violation or a threatened violation.

I would really appreaciate if I got an answer to me queries.

Thanks and best regards,

Naveen Tiku

How its going?

Hey there, I blogged this to Let’s Go Crazy with John, Marcia, Prince, YouTube and the Massive Media on my blog.

Second Prince related post in a month!

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