A quiet, private world?

Yesterday’s law.com has a story about a case brought by Stephanie Lenz v. Universal Music. Lenz has sued Universal for misrepresenting its copyright rights under the DMCA when Universal sent Youtube a DMCA takedown notice. At issue is a home video, posted to Youtube, of Lenz’s toddler pushing a walker and jumping up and down while Prince’s “Let’s Go Crazy” plays in the background. Lenz contends that her use is fair use.

Universal certainly has some arguments in its favor. They could claim that Lenz has violated Universal’s reproduction and public performance rights, and that uses like hers cannot be distinguished from deliberately made music videos (which copyright holders routinely get paid for) and documentary “candid” shots (for which copyright holders routinely assert the right for payment — sometimes successfully). If Lenz’s use is allowed, Universal will argue, then Universal won’t be able to get paid for music videos and documentaries.

Given the state of the law, I am skeptical that a court will sanction Universal for sending the takedown notice. That having been said, it might be a good thing for Universal to be given a “warning shot across the bow” because uses like Lenz’s are, in my opinion, pretty clearly fair use. The use is clearly noncommercial, the music is in the background with poor audio that no one would listen to as a substitute, only part of the work is used, and it’s highly unlikely that her use affects Universal’s ability to sell rights to “serious” users of the work.

Moreover, if a court agrees with Universal that Lenz has committed infringement and fair use doesn’t apply, we may enter a quiet, private world. Movies like Lenz’s are made every day by the thousands. If the act of showing those movies to people other than family and friends is infringement, then those controlling IP control how we share our lives. IP (copyrighted works and trademarks) is ubiquitous in our surroundings. It’s hard to take home video without capturing some. If Universal is right, then those moments can be shared publicly only with Universal’s consent. That would fundamentally change the operation and value of sites like Youtube, and it’s interesting to consider the permissions that would have to be cleared before video of the bride and groom’s courtship could be shown at wedding receptions. But, perhaps, that was precisely the reason Universal complained in the first place.