The Electronic Frontier Foundation is trying to make Universal Music pay damages for unfairly taking a home video of a toddler dancing to a Prince song off YouTube.
But before the sides get to the sticky question of just how the toddler's mother, Stephanie Lenz, suffered by having the video pulled and later restored to YouTube, the EFF wants a judge to determine if such damages are even possible.
At a hearing Friday morning, Michael Kwun, a Keker & Van Nest lawyer working for the EFF, asked Judge Jeremy Fogel to rule on whether the nonprofit could seek more than $400,000 in attorney fees and other damages from Prince's music label under the Digital Millennium Copyright Act (pdf).
It's a novel effort that has little precedent, even though the DMCA has been around since 1998. The EFF, which aims to protect civil liberties on the Web, wants to create a deterrent in the form of stiffer penalties for copyright holders that abuse the take-down process.
The EFF has argued that Universal's lawyers should have taken a moment to consider whether Lenz had a fair-use right to post a 29-second clip of her 13-month-old son Holden dancing to Prince's "Let's Get Crazy" before firing off a take-down notice to YouTube. YouTube removed the video, but restored it six weeks later when Lenz filed a counter notice. Last July, the EFF took the unusual step of suing Universal.
In court, Kwun argued that the DMCA gives copyright holders the ability to send take-down notices, promises Web sites safe harbor from infringement claims, and, in Section 512(f), assures Internet users of damages if a video is taken down because of misrepresentation.
"The advantage to the Internet user -- what they get is 512(f), and they get to seek a remedy for false take-down notices," Kwun said.
The EFF wants $430,000 in attorney fees, $5,000 in costs, and $175 spent by Lenz for the purchase of a hard drive.
Kelly Klaus, a Munger, Tolles & Olson lawyer representing Universal, argued that the remedy was the counter notice and that there were no damages anyway.
"Congress also said that there was another remedy, which is the counter-notice procedure, which is what happened here," Klaus said. "It was down for a couple of weeks and then put back up with no economic loss."
Klaus added that the damages shouldn't cover the plaintiff's bill to file a lawsuit, either.
Fogel didn't tip his hand about which way he would rule. The lawyers said they expected him to give them guidance on the damages issue when he issues his opinion on the summary judgment motion. Aside from damages, the EFF had also asked Fogel to rule on a handful of Universal's defenses. Fogel indicated that he would toss three of Universal's defenses, including failure to state a claim.
Although a jury would ultimately have to decide what damages, if any, are owed to Lenz, Kwun and Klaus were ready to argue their sides of the issue.
Kwun said Lenz suffered because her free speech was impinged when the video was taken down for six weeks. Klaus countered that it would be hard for Lenz to show any economic loss in the case.
And in Universal's opposition to the summary judgment motion, Klaus wrote that Lenz herself didn't even believe she was injured "substantially and irreparably" as the lawsuit alleges.
"Plaintiff was mocking that very allegation in an e-mail exchange with [her friend] Ms. Fleming ...
Fleming: I love how you've been injured "substantially and irreparably." ;-)
Plaintiff: I have ;-)"
The hearing itself was fairly uneventful, with Fogel presiding calmly over the two sides' cordial exchange of arguments. Fogel said he would rule in January.
Of course, the EFF would benefit financially if Fogel rules in its favor. But Corynne McSherry, another EFF lawyer at the hearing, insisted that wasn't the aim. "We have much more efficient ways of fundraising," she said afterward.