Five years since Stephanie Lenz attempted to sue Universal Music for taking down a video of her baby dancing, the case is heading for a conclusion.
Lenz’s lawyers at the Electronic Frontier Foundation (EFF) were looking for a case that showed the video as an example of 'fair use' - hoping to see content owner Universal Music, who initiated the takedown, forced to pay damages, under a section of the Digital Millennium Copyright Act (512(f)).
Arguing for Universal, Kelly Klaus of Munger, Tolles & Olson said "There is no evidence whatsoever in this record that Universal knew it was making a misrepresentation,"
"Their [EFF's] position is that every takedown notice done without someone doing a full [fair use] review is in violation of 512(f)." And that's just not practical, he said.
US District Judge Jeremy Fogel, who is overseeing the case seemed in two minds. He said that it wasn't clear that the EEF lawyers have shown that Universal exhibited "subjective bad faith" necessary to have violated te DMC clause.
But Fogul didn’t rule in Universal's favour either, saying, "A reasonable fact-finder could conclude, that this is an action taken in subjective bad faith."
The judge said that he didn't feel inclined to find for either side without a jury trial.
Arguing for the EEF, Corynne McSherry said that Universal had no process in place to find fair use: "Sean Johnson [the Universal employee who initiated the takedown] wasn't equipped—he had no idea what to look for. Whether it was Ms. Lenz's fair use, or anybody else's."
In response, Klaus said, "There is no evidence whatsoever in this record that Universal knew it was making a misrepresentation.
"Their [EFF's] position is that every takedown notice done without someone doing a full [fair use] review is in violation of 512(f)," he added that such a perceotion is not practical.
Klaus explained that Universal employees who were hunting for Prince songs on YouTube found thousands of posts, and many of them went back up as soon as they were taken down. "They were playing a game of whack-a-mole."
EFF is asking for compensation for 10 hours of Lenz's time, spent dealing with the takedown notice before she contacted EFF, based on the Pennsylvania minimum wage at the time of $6.25 per hour.
They're also asking for compensation $1,275 for the time that EFF attorneys spent advising her pre-suit.