A Legal Blog by Aaron | Sanders, PLLC

Lenz, the DMCA and Dancing Babies: Don’t Go Crazy, OK?

tl;dr Summary

Although the DMCA’s procedure for taking down allegedly infringing material is (ahem) nearly universally disliked. Rights holders can’t figure out why it’s so hard to take infringing material down, and consumers and service providers can’t figure out why it’s so easy to take obviously non-infringing down. Lenz v. Universal thus appeared a perfect test case for those who wished to clip the wings of the DMCA’s takedown procedure. When Universal saw Ms. Lenz’s video of her toddler dancing to “Let’s Go Crazy” in the background, it got the video removed. Although Ms. Lenz was able to get it put back up, she was angry enough to sue Universal under §512(f), which forbids knowingly representing that a work subject of a takedown notice is infringing. Her theory was that her video was so obviously a fair use, Universal’s takedown notice constituted a knowing misrepresentation. She knew, however, that she had a tough road, because at most all Universal had to prove was that it had a subjective belief that her video wasn’t fair use, a very low standard indeed.

At trial, she successfully fended off a motion to dismiss and a motion for summary judgment, in which Universal argued that…

This seismometer measures changes to copyright law, starting in 1909. The big disturbance is either the 1976 Act or possibly the Sony Betamax case. Note that it's been a while since the needle has moved significantly.

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Turntable.fm: Can Internet Radio Consist of Rotating Guest DJs? (Part 12 in our Online Music Service Series)

Is Turntable.fm Too Cool for the Webcasting Tribe?

In our last two posts in this series, we saw how Pandora had to jump through about twelve hoops to come under the statutory webcaster license (just for the right to pay statutory royalties!), and even then, its business model was found to be legal only a couple of years ago.  Yet, compared to Turntable.fm, Pandora’s business is straightforward.  Turntable.fm’s innovations have earned it raves from the technocrati–and make for a fascinating copyright case study.

Whereas Pandora uses a computer algorithm to generate personalized playlists for its users, Turntable.fm encourages users to act as tastemakers, then further encourages the tastemakers by creating a kind of social competition, with the audience as judges.  It’s a kind of warp-speed American Idol but for cool kids and recorded music.  Turntable.fm is still in beta, so its final form isn’t necessarily set.  The description that follows is based on reports by users and Turntable.fm’s own FAQ.

I Am the DJ, I Am What I Play

Turntable.fm enables users to set up “rooms,” which are typically themed by music genre.  Visitors may opt to be a “DJ” or simply an audience member.  If you choose to be a DJ, your…

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Pandora Almost Wasn’t: the Definition of “Interactive” (Part 11 of our Online Music Services Series)

When “Unique” Doesn’t Mean “Special” (and Why that Actually Makes Sense)

Last time, we looked at how venerable Pandora fits into the legal ecosystem of online music services.  It’s a webcaster, which means that, if it plays its cards exactly right, it can avail itself of a statutory license for the right to stream sound recordings.  It turned out this is an arduous task, but Pandora (and many other webcasters) have been up to the task.  Except for one thing, which could have blown the whole project out of the water.

The first requirement that a webcaster must meet to be eligible for the statutory license is not to be an “interactive service.”  The Copyright Act provides a lengthy definition of interactive service, but it boils down to (1) playing requests, or (2) creating a program “specially” for the user.  It’s easy to avoid definition (1).  But what does it mean for a program to be “specially created for the recipient”?  The most successful webcasters are successful because they can create programs that are unique to the user.  Does that make them also “special” to the user?

As it happens, in 2001, the music industry sued one such webcasting service called LAUNCHcast.…

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You Are on Pandora, Ladies and Gentlemen (Part 10 of our Online Music Services Series)

Pass the Tests, Join the Webcasting Tribe

Pandora has actually been around for a long time.  It launched in 2005.  It bills itself as “internet radio,” but that’s not quite right.  There are no disc jockeys making song selections.  Instead, it uses its famed Music Genome algorithm to choose songs that Pandora thinks you’ll like.  You probably know how it works:  you enter the title of a song or the name of an artist, and Pandora provides you with a stream of music that is musically like that song or artist, automatically.*  The alternative was to place genres into increasingly narrow genres and sub-genres.  This requires a lot of hard work by taste-makers, who must be constantly updating their genres and sub-genres in light of new music.  (Anyone remember the old Listen.com?)  Some truly great artists were very difficult to classify.  Some songs were like WALL•E’s spork, neither fork nor spoon.

*  You can also choose music by genre, but that seems to defeat the point.

This idea, by the way, had been kicking around since 2000 as the Music Genome Project.  It’s always been a little difficult to describe in abstract terms the kind of music you like.  Even…

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