Under US law a copyright owner can contact a service provider,
such as a video sharing website, and demand that they take down
material that infringes their rights. The service provider will
usually take the material down first, then inform whoever posted it
online of their actions and reasons.
US copyright law contains a safeguard against abuse of this
process, though. Section 512(f) of the US Copyright Act says that
anyone who misrepresents their rights in demanding the takedown of
material will have to pay the person who posted it damages.
Exactly what those damages are has never been tested in court,
though, until now. In a ruling from the US District Court for the
Northern District of California judge Jeremy Fogel has ruled on how
that right to damages should be interpreted.
Internet law expert Eric Goldman, who is associate professor of
law at Santa Clara University School of Law in the US,
said
in his blog that this is the first time that a court has
ruled on the exact meaning of that piece of the law.
"I can't recall another case discussing the damages requirements
of a 512(f) claim," he wrote. "The only other definitive 512(f)
plaintiff's win was Online Policy Group v. Diebold (also before
Judge Fogel), which settled for $125k before Judge Fogel reached
damages. As a result, I believe this is a novel ruling which could
have significant implications for future 512(f) cases."
The case involved Stephanie Lenz and her uploading to YouTube of
a video of her children dancing to a song by Prince, which was
playing in the background. Universal Music issued YouTube with a
takedown notice and Lenz sued, claiming that her video was
protected by the 'fair use' provisions of US copyright law.
The Court had previously ruled that copyright holders should
consider whether material is protected by fair use provisions
before they issue takedown notices to service providers. In this
ruling it considered what damages the person whose material had
been taken down could claim.
Universal had claimed that economic damage had to be "more than
marginal" in order for a case to succeed, while Lenz said that she
should be entitled to all of her legal fees for disputing the
takedown and taking her case to court.
The Court disagreed in part with both sides.
"The use of 'any damages' suggests strongly Congressional intent
that recovery be available for damages even if they do not amount
to … substantial economic damages," Judge Fogel ruled. "The
statutory language, overall statutory scheme, and legislative
history all are inconsistent with Universal’s narrow interpretation
of 'any damages'."
The Court said, though, that Lenz was not entitled to her legal
fees for bringing the case to court because the Copyright Act
allowed her to issue a counter-notice asserting her right to
publish the clip. Costs related to that counter-notice were
allowed, it said, but not those involved in the court case.
Judge Fogel agreed with Universal that if people in Lenz's
position were able to recover those costs they could instantly
create a right to monetary damages just by hiring lawyers to go to
court, thereby incurring costs that would have to be paid by
copyright holders.
"Overall, I think the legal rules outlined in this case are more
favorable to 512(f) plaintiffs than not, but they also remind us
how 512(f)'s utility may be limited in practice," said Goldman in
his blog. "This ruling illustrates how hard 512(f) plaintiffs have
to work to find compensable damages. We don't see many 512(f) cases
being brought. Watching this case, it's easy to see why."
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