After years of litigation, it appears Stephanie Lenz may have a chance to tell her story to a jury. Back in 2007, you’ll remember, she posted a video to YouTube of her children dancing and running around in her kitchen with Prince’s “Let’s Go Crazy” playing in the background. A few months later, Universal Music Corp. used the Digital Millennium Copyright Act's rapid-fire takedown process to get the video removed from YouTube, claiming that it infringed copyright law. With help from EFF and Keker & Van Nest, Lenz fought back. She filed a lawsuit asking a federal court to hold Universal accountable for misrepresenting that her fair use video violated copyright law. Late last week, Judge Jeremy Fogel issued a ruling in the case that sent contradictory signals on the future of fair use under the DMCA.

The good news: The ruling provided further affirmation, if it were needed, that the DMCA does not give copyright owners the right to simply take down content without first considering fair use. Of course, that was already the law. But last week’s ruling also clarified that that "consideration" means making an actual legal determination. Universal had argued that it was enough to consider some facts that might be relevant to a fair use analysis.  No cigar, said the court: a content owner must make an effort "to evaluate the significance of such facts" in the context of the fair use doctrine. That’s good news for the Internet – content owners can no longer pretend that the DMCA takedown process does not require actual thought and judgment.

Also good news: the court rejected Universal’s claim that the DMCA didn’t apply at all because its takedown notice included a disclaimer asserting that the notice wasn't actually under the DMCA. The court held that since Universal used the YouTube's DMCA process and got the benefit of it, it couldn't wiggle out of the DMCA's responsibilities with a one-sided disclaimer. 

More disappointing: the court concluded that Universal cannot be held accountable for its failure to consider fair use unless Ms. Lenz can persuade a jury that Universal willfully blinded itself to the potential application of the fair use doctrine. Here’s the practical problem for the average fair user: Trials are expensive and time-consuming. If a trial is required to prove up a DMCA misrepresentation claim, few people victimized by unfounded takedowns will have the resources and time to obtain redress.

Also disappointing: the court's failure to allow a claim for nominal damages for the free speech harms Ms. Lenz suffered. Nominal damages are normally small amounts, sometimes as little as $1, that are awarded when it is difficult to identify a significant financial loss. As we argued, the statute uses extremely broad language, allowing a DMCA takedown victim to recover “any damages.”  Given that (1) improper takedowns inevitably impact free speech; (2) speech damages are often difficult to quantify; and (3) nominal damages are commonly allowed in other free speech contexts for precisely this reason, we think the court should have allowed them here.

This litigation is far from over: it is likely that this baby will be dancing not just to trial, but also to appellate court. Yet overall the case is creating good law and we are pleased that the court has recognized, once again, that the DMCA was not intended to allow copyright owners to ignore fair use.