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IP/Entertainment Case Law Updates

Lenz v. Universal Music Corporation, et al.

The plaintiff posted a video on YouTube that showed her toddler son dancing in her kitchen to a Prince song. Universal, the owner of the copyright in the song, filed a notice with YouTube, demanding that YouTube remove the video. (Universal claimed that it notified YouTube according to YouTube’s Terms of Use, but the complaint claimed that Universal’s notice was sent under 17 USC §512(c), the DMCA take-down provision.) YouTube removed the video and notified the plaintiff that it had done so in response to Universal’s accusation of copyright infringement. The plaintiff filed a counter-notification with YouTube, which re-posted the video. The plaintiff then sued Universal under 17 USC §512(f) which provides: “Any person who knowingly materially misrepresents under this section that material or activity is infringing ... shall be liable for any damages, including costs and attorney's fees, incurred by the alleged infringer ... as the result of the service provider relying upon such misrepresentations in removing or disabling access to the material or active claims to be infringing.”

The plaintiff claimed that Universal knew or should have known that the video did not infringe Universal’s copyright and that her video was a “self-evident non-infringing fair use.”

Universal moved to dismiss the claim, arguing that the plaintiff failed to plead the proper mental state (knowing misrepresentation) required by §512(f) as interpreted by the Ninth Circuit, and the district court agreed. Relying on previous decisions interpreting §512(f), the court held that a plaintiff must make a showing of a “knowing misrepresentation” on the part of the copyright owner, rather than showing that the copyright owner made a mistake or should have known the material was not infringing. “Here, it is undisputed that the [] song is copyrighted, and Universal does not concede that the posting is a fair use. Under Rossi [v. MPAA, 391 F.3d 1000 (9th Cir.2004)], there must be a showing of a knowing misrepresentation on the part of the copyright owner. Lenz fails to allege facts from which such a misrepresentation may be inferred. Lenz also fails to allege why her use of [the song] was a ‘self-evident’ fair use. Accordingly, Lenz's first claim will be dismissed, with leave to amend.”

The court also dismissed Universal’s motion to strike under California’s Anti-SLAPP statute because it is not clear that Universal’s speech (i.e., its take-down notice) is free speech involving a matter of public concern. The court also dismissed the plaintiff’s state law claim for tortious interference with contract because it is pre-empted by the Copyright Act, but allowed the plaintiff to amend her complaint “because it is possible that Lenz may be able to allege that the take down notice was based on YouTube's Terms of Use policy rather than the DMCA.”

Finally, the court dismissed the plaintiff’s declaratory judgment claim of non-infringement because there is no case or controversy between the plaintiff and Universal; Universal stated that it did not intend to file a copyright infringement suit against the plaintiff and its take-down notice is not similar to threatening the plaintiff with a copyright infringement suit.