On January 6, 2020, a District Court ruled against a video bootlegger’s frivolous fair use defense of “there’s nothing wrong with posting concert videos.” 1 The Court not only ruled against the bootlegger on every point of the fair use defense, but found his infringement “willful,” which will allow Prince’s Estate to seek enhanced statutory damages at trial, and issued a permanent injunction. 2
Under normal circumstances, one should be happy about such a resounding victory for the Estate of one of the 20th Century’s most important and influential musical artists. Yet this case underscores the pervasive rot of the internet’s ethos that copyright is a troublesome nuisance that is best ignored.
Simply enough, the Defendant took video of Prince at two different concerts, then uploaded five discrete section to YouTube. Continuing what the Court describes as Prince’s efforts during his lifetime of ‘enforc[ing] his intellectual property rights aggressively,’ 3 Plaintiff issued five takedown notices to YouTube pursuant to section 512. Under normal circumstances this would be the end of the case. Instead, the Defendant filed five identical counter-notices, without seeking any legal advice, that the videos were “fair use” because they were ‘noncommercial and transformative in nature … use[d] no more of the original than necessary, and ha[d] no negative effect on the market for the work.’ 4 Now, if the Defendant did not seek legal advice, where did he come up with that language? Probably off the internet, and probably off some anti-copyright website where armchair lawyers love to frolic.
Faced with the counter-notices, Prince’s Trust had no other option but to sue. If they did not, under the DMCA, the videos would have to go back up. Fortunately, Prince’s Trust had the financial wherewithal to do so. Your average musical artist might not be so lucky, in the age of streaming where the payout is measured in 100ths of a cent.
With the Defendant apparently proceeding to represent himself, Prince’s Estate finds itself dragged into a suit full of half–baked defenses, all pulled from the internet as they cite no discernable case law.
Defendant claims that his videos are (of course) “transformative,” the magic buzzword trotted out by every Defendant claiming fair use. How? You won’t believe it, but it’s transformative “’because [Defendant] specifically chose the vantage point to record from and alternated between shots of the performance and reactions from the crowd.” Additionally, he avers that the faint ‘bantering and [crowd] interactions’ captured by his videos render them transformative.” 5
The Court is not buying it.
“These arguments miss the mark. Critically, [Defendant] did not imbue Prince’s musical compositions with new meaning or add any of his own expression to the underlying works…[Defendant’s] videos serve no such transformative purpose. In fact, the record is devoid of evidence that might support [Defendant’s] claim that his videos are “educational” or “historical” in nature.” 6
One might also add that Defendant’s “vantage point” was largely determined by the seat his ticket was issued for.
Next, Defendant argues his videos are non-commercial because he did not seek to monetize them with YouTube.
The Court dismisses this argument, ruling:
“The Court’s inquiry, therefore, does not end with a finding that [Defendant’s] use was non-commercial; rather, it turns on ‘whether [Defendant] stands to profit from exploitation of the copyrighted material without paying the customary price.’ [citation omitted] ‘Profit,’ in this context, is … not limited simply to dollars and coins; instead, it encompasses other non-monetary calculable benefits or advantages.’ [citation omitted] Here, [Defendant] sought to drive traffic to his YouTube channel by posting ‘rare’ and ‘[a]mazing’ videos of Prince performing his musical compositions in concert….Thus, [Defendant] stood ‘to gain recognition … through [his] posting of [Prince’s musical compositions] online’ and ‘benefitted by being able to provide the protected works free of cost’ to other YouTube users. [citation omitted] (holding that ‘[g]enerating traffic to one’s website … using copyrighted material is within the type of ‘profit’ contemplated’ by the first fair use factor). Accordingly, the ‘non-commercial’ nature of [Defendant’s] videos is far from dispositive and, if anything, counsels against a finding of fair use. Therefore, the Court concludes that the first factor weighs decisively in [Plaintiff’s] favor.” 7
Indeed, the Prince videos had generated thousands of views on Defendant’s YouTube channel. 8
Apparently skipping the second fair use factor of “the nature of the copyrighted work,” Defendant then argues his taking was minimal because he only posted 17 minutes out of the approximately six hours of the concerts he attended. 9 Once again, this trots out the wholly discredited argument of “look how much I didn’t steal.”
The Court again dismisses this argument, ruling:
“[T]he relevant ‘analysis is not how much of the full concert [Defendant][copied and] distributed, but how much of each copyrighted musical composition he copied.’… [Defendant’s] videos copied significant and valuable portions of the six musical compositions, in many cases capturing multiple verses and recognizable refrains.” 10
As to the fourth factor, the market effect, the Court rules:
“While the Court queries the extent to which the ‘grainy’ and ‘blurry’ visuals, muffled sound, and pervasive audience din in [Defendant’s] videos, [citation omitted] ‘satisfy[ ] viewers’ taste for videos of Prince performances,’ [citation omitted] even drawing all inferences in [Defendant’s] favor, his videos plainly divert traffic away from authorized reproductions of the musical compositions, thus depriving the Estate of advertising revenue…[s]imilarly, the Court is persuaded that [Defendant’s] decidedly poor-quality recordings harm the Estate’s interest in policing the caliber of secondary uses of Prince’s musical compositions. Indeed, the Copyright Act repeatedly demonstrates a commitment to musicians’ right to protect the integrity of their compositions.” 11
Thus, all four fair use factors go against the Defendant. But it gets worse for him.
“Notwithstanding the fact that [Defendant] received—and did not dispute—multiple Content ID claims informing him that his audiovisual recordings of live musical performances contained copyrighted material, [Defendant] continued to post similar videos, assuming that he would escape legal liability merely because some copyright owners elected to allow his videos to remain live.” 12
Indeed this is one of the trenchant points. Since all that is necessary to defeat a DMCA claim is to file a frivolous counter-notice, as happened here, then many artists will simply not bother to file a takedown notice because the price of enforcing it, a full blown Federal copyright infringement suit, is out of their financial ability. As I queried in the title of this blog, “What if you’re not Prince?” What if you can’t afford the very high cost of enforcing your legal rights? If not, do you really have any rights at all?
“Indeed, [Defendant’s] unflagging conviction—one that he has maintained throughout this copyright infringement suit—that ‘every artist … encourage[s] people to post video[s]’ of live musical performances, [citation omitted], demonstrates an unreasonable disregard for the exclusive rights afforded to musicians under the Copyright Act. [citation omitted] Moreover, his ‘casual’ counter-notification submissions, [citation omitted] recklessly assumed that parroting the statutory fair use factors is an adequate substitute for either seeking out legal advice or carefully evaluating the applicability of the fair use doctrine.” 13
The Court finds Defendant’s infringements “willful,” thus allowing an enhanced level of statutory damages, and issues a permanent injunction against the Defendant.
How much did all of this cost Prince’s Estate? I can’t say that I know. But this case vividly illustrates how simple flimsy and frivolous filings frustrate the purpose of the DMCA, a law that is badly broken and needs fixing.