YouTube Yanks Video of Toddler – Can Mom Recover Damages?

DMCA Damages for Safe Harbor Provision Abuse? What was that?

Ok, so Mom posts video of Kid dancing to Prince; Record Co. sends YouTube the YankIt letter; YouTube duly yanks video; Mom sends UnYankIt letter; Video back online.  And that’s how YouTube itself avoids liability under the Digital Millenium Copyright Act (DMCA).

Then Electronic Frontier Foundation (EFF), sort of the Internet ACLU, sues Record Co. Universal under DMCA on a legal theory called,  “What were you thinking? It’s 29 seconds of Kid-n-Prince!  Fair Use!”  Court agrees and rules Universal should have considered whether the post was Fair Use before sending YankIt letter.

Zusha Elinson of the Recorder reports that EFF now wants damages and attorney fees for their suit against Universal.   See article at Law.com.   But short of misrepresentation, there is no statutory provision allowing damages for sending a YankIt letter.  So this case bears watching.

I have been involved in cases where entire websites were pulled down by ISPs in response to wildly flimsy copyright infringement claims.  Yes, the sites were often brought back online at a later point, but in the interim the party was out of business — a costly affair.

There should be a better way to deter abuse of copyright take-down notifications.  But allowing damages against a YankIt letter sender who makes tenable claims  — no matter how weak — could leave copyright owners wary of trying to protect their own rights, for fear of liability in making a valid infringement claim.  That would create a bloody legal mess.   Universal, after all, appears to have had a Prima Facie case.  Fair Use is a defense.  If Universal had to pay because, although they had a case, it was weak and they weren’t nice about it . . . .   Yikes! (And I’m actually on EFF and Mom’s side on this.)