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In
The Honourable
Supreme Court of India
New Delhi

Special Leave Appeal Petition: __/2016

Universal Music Corporation ...................................... APPELLANT

Vs.

Stephanie Lenz ....................................... RESPONDENT

Memorial for the RESPONDENT

Submitted By-

DEEPINDER SINGH

COUNSEL NO. 15IP61018

-------------------------------RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW------------------------

TABLE OF CONTENTS

INDEX OF AUTHORITIES iii

LIST OF ABBREVIATIONS Iv

v
CASES REFERRED
BOOKS REFERRED vi

STATEMENT OF JURISDICTION vii

viii
STATEMENT OF FACTS

9
ISSUES RAISED

10
SUMMARY OF ARGUMENTS
ARGUMENTS ADVANCED 11

18
PRAYER
-------------------------------RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW------------------------ 3

INDEX OF AUTHORITIES

The Constitution of India, 1950

List of Statutes
1. Indian Copyright Act, 1957
2. United States Copyright Law -Copyright Act of 1976

LIST OF ABBREVIATIONS
-------------------------------RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW------------------------ 4

1.
A.C Appeal cases

2. AIR All India Reporter

3. U.S United States Supreme Court

4. Ors. Others

5. SC Supreme Court

6.
SCC Supreme Court Case

7.
Manu Manupatra

8.
W.L.R West Law Reports

LIST OF CASES REFERRED

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Sr.No CASE NAME CITATION Page no.

 -------------------------------RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW------------------------ 6

1. New Era Publications International v. Henry Holt, MANU/FESC/0070/1989 11

Co.
2. Sundeman v Sea Jay Society Inc 143 F.3D194,202 4th circuit 11
(1998)
3. Campbell v. AcuffRose Music 510 U.S. 569 11
4. Harper & Row, Publishers, Inc. v. Nation Enterprises 471 US 539 (1985) 11
5. Sony Corporation of America et al. v. Universal City 464 U.S. 417 11
Studios, Inc.,
6. Chancellor Masters and Scholars of the University of 2008 Indlaw DEL 1239 12
Oxford v Narendera Publishing House
7. India TV Independent News Service Limited v 2013 (53) PTC 586 (Del) 12
Yashraj Films Private Limited
8. Tekla Corporation and another v Survo Ghosh 2014 Indlaw DEL 1506 13
9. Campbell v. Acuff-Rose Music, Inc 510 U.S. 569 13
10. Los Angeles Times v. Free Republic 2000 U.S. Dist.LEXIS 5669 13

11. Time Inc v. Bernard Geis Associates 293 F. Supp. 130 13

(S.D.N.Y. 1968)
12. Kelly v. Arriba Soft Corporation 280 F.3d 934 (9th Cir. 2002) 14
13. Harper & Row v. Nation Enterprises 471 U.S. 539 (1985) 14
14. Sony Corp v. Universal City Studios 464 U.S. 417 14
15. Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985) 15
16. Rossi v. Motion Picture Ass'n of Am. Inc., MANU/FENT/0250/2004 16

17. http://apps.americanbar.org/buslaw/committees/CL1 16
30000pub/newsletter/201203/wilson-kerman.pdf
18. Experi-Metal, Inc. v. Comerica Bank18 2011 WL 2433383 16
(E.D. Mich. 2011)
19. Disney Enters., Inc. v. Hotfile Corp., et al, No. 1:2011cv20427 - 16
Doc 94 (S.D. Fla. 2011)
20. Rosen v.Hosting Servs., Inc., 771 F.Supp.2d 1219, 1223 17
(C.D. Cal. 2010)
21. Online Policy Group. v. Diebold, Inc., 337 F.Supp.2d 1195, 17
(1204-05)
22. Cf. Consumer Prod. Safety Comm'n v. GTE MANU/USSC/0128/ 17
Sylvania, Inc (1980)
23. Bostridge v Oxleas NHS Foundation Trust EWCA Civ 7 (2015) 17
24. R. (on the application of Abdollahi) v Secretary of [2012] EWHC 878 17
State for the Home Department

BOOKS REFERRED
SERIAL NAME OF BOOK AUTHOR ,YEAR OF
NUMBER PUBLICATION &
PUBLISHING HOUSE
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1. Fundamentals Of United States Intellectual Sheldon W.Halpern,

Property Law Craig Allen nard,
Kenneth L. Port,
3rd edition -2011,
by Wolters Kluwer
Publishers
2. Digital Copyright and the Consumer Mathew Rimmer,1st
Revolution Edition by Edward
Elgar Publishing Inc.
USA
3. Intellectual Property and Information Peter K.YU,1st Edition,
wealth(Copy Right and related Rights) by Praeger Publishers,
Westport
 -------------------------------RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW------------------------ 8

STATEMENT OF JURISDICTION

The Honorable S upreme Court of India has Universal Juris diction under
Article 136 of Cons titution of India.
The respondent most humbly and respectfully submits to the jurisdiction of the
Honorable Court .
....
 -------------------------------RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW------------------------ 9
STATEMENT OF FACTS

Factual Background:

1. On February 7, 2007 Lenz uploaded a 29-second home video of her two young children
dancing to the song Let's Go Crazy by singer Prince to YouTube,.
2. She titled the video "'Let's Go Crazy' #1."
3. Universal was Prince's publishing administrator responsible for enforcing his copyrights.
4. Sean Johnson, from legal department was assigned the job by Universal music to
monitor YouTube and he then sent takedown notice to YouTube to remove it.
5. After receiving the takedown notification, YouTube removed the video and sent Lenz an
email on June 5, 2007, notifying her of the removal.
6. On June 7, 2007, Lenz attempted to restore the video by sending a counter-notification
to YouTube as required by the terms and by the law.
7. Then YouTube provided this counter-notification to Universal and restored the video,
and Universal protested the video's reinstatement.
8. Lenz with the help of pro bono counsel sent a second counter-notification on June 27,
2007, which resulted in YouTube's reinstatement of the video in mid-July.
9. Lenz filed suit against the Universal Music in District Court on 24 July 2007 for forcing
site to remove her personal video and violated her legal rights.
10. District court denied the motion for summary judgment and did not grant any relief.

Hence, the present case is before this Honorable Court.

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ISSUES RAISED

1. Whether Universal Music had bona-fide belief that video infringed their rights and
Was the action taken valid in law or Universal Music infringed the Lenz legal right.
 -------------------------------RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW --------------------11

SUMMARY OF ARGUMENTS

1. Doctrine of Fair Use is authorized and permissible under the law.

2. The appellant had actual knowledge of fair use still denied the law and did not comply with the
conditions laid down by the law and caused injury to the respondent.
 -------------------------------RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW --------------------12

ARGUMENTS ADVANCED

1. Doctrine of Fair Use is authorized and permissible under the law.

According to the Blacks Law Dictionary, Fair Use is the legal use of the copyrighted material without the
permission of the owner.

1.1 Fair use is not just excused by the law, it is wholly authorized by the law.

In 1976, Congress codified the application of a four-step test for determining the fair use of copyrighted
works:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, . . . for purposes such as
criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an
infringement of copyright.

In the current case there respondents child danced on the appellants song and as the video was posted on
the website , respondent took it in infringing side of his work.

Doctrine of fair use allows limited copying 1.

The US Supreme Court held any individual may reproduce the work for fair use and Copy right owner
does not have the exclusive right to restrict the fair use.2

The Congress intended that the fair use must be given interpretation by the Courts only as it depends on
the facts and so accordingly on the case to case basis.3

Courts must be free to adapt and implement the doctrine according to the situation and modify it for the
needs of the justice. 4

Section 107 of the US Copyright Act suggests that there must be a fair use and the use must be
appropriate. Even its definition is vast and covers the unwritten matters also.

It was held that the video recording of the program which was being aired is fair use when is done in
home for non commercial purpose. So the defendant was not liable and the judges concentrated more on
the non commercial home video recording as fair use.5

___________________________________________________________________
1
New Era Publications International v. Henry Holt, Co. (MANU/FESC/0070/1989)
2
Sundeman v Sea Jay Society Inc (143 F.3D194,202 4th circuit 1998)

3
Campbell v. AcuffRose Music (510 U.S. 569)

4 Harper & Row, Publishers, Inc. v. Nation Enterprises (471 US 539 (1985)

5. Sony Corporation of America et al. v. Universal City Studios, Inc., (464 U.S. 417)
 -------------------------------RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW --------------------13

In an Article in103 (Harvard Law Review 1105,1111 (yr.1990)) ,explained that the preamble of the
Copyright Act 1976 articulates the fair use . Investigation must be made as to determine if the new work
adds something new, with a further purpose or different character altering first with the new
expression ,meaning or message ,then there should be an enquiry that work is transformative .

1.2 Indian Copyright Act ,1957 Section 52 states as-

(1) The following acts shall not constitute an infringement of copyright, namely:

(a) a fair dealing with a literary, dramatic, musical or artistic work [not being a computer programme] for
the purposes of-

(i) private use, including research;

(ii) criticism or review, whether of that work or of any other work; "

The language used by the legislators is very clear and unambiguous and so clearly there is no
infringement of the owners work.

Delhi High Court held that when main book does not provide the required steps for maths , if other party
do by applying their skill for students it is not infringement and is in the public interest 6.

In the case of Yashraj Films 7 court applied De Minimis theory and

Factors commonly considered by Courts in applying de minimis are well listed.

They are five in number - (i) the size and type of the harm

(ii) the cost of adjudication

(iii) the purpose of the violated legal obligation

(iv) the effect on the legal rights of third parties, and

(v) the intent of the wrongdoer

Here in a chat show the court held that when a singer sings for 10 minute and then he recaps his life from
start to this stardom level, the viewers will see this recap part of star as crux and not the singing part.

It is not violation of the copyright and it is a fair use.

____________________________________________________________________
6
Chancellor Masters and Scholars of the University of Oxford v Narendera Publishing House (2008 Indlaw DEL 1239)

7
India TV Independent News Service Limited and others v Yashraj Films Private Limited (2012 Indlaw DEL 1663)
 -------------------------------RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW --------------------14

8
In another case , software was being installed by the defendants without license , but due to monopoly in
the structure design field , they charged unreasonable fee apart from license fee, annual maintenance
charge and other fee and if any one does not pay, they imposed heavy penalty. So the defendants used to
do maintenance, etc it on their computers themselves to avoid heavy charges. Here court used the doctrine
of public policy as they had monopoly and even held defense of "misuse of copyright" by holder thereof
is not available, neither to an action for infringement of copyright nor to an action for damages for
infringement of copyright.

Defense of "misuse of copyright" by holder thereof is not available, neither to an action for infringement
of copyright nor to an action for damages for infringement of copyright.
9
The doctrine of fair use provides the space for breathing.

According to section 107 of the US Copyright Act 1976, work must qualify the Tests of fair doctrine as-

1. Purpose and character of the use

The first factor is the purpose and character of the use, including whether such use is of a commercial
nature or is for non-profit educational purposes. To justify the use as fair, one must demonstrate how it
either advances knowledge or the progress of the arts through the addition of something new.

In the 1994 decision9 the U.S. Supreme Court held that when the purpose of the use is transformative, so
more likely fair use.

On other hand , in Los Angeles Times v. Free Republic10, the court found that the non-commercial use of
LA Times content by the Free Republic Web site was not fair use, since it allowed the public to obtain
material at no cost that they would otherwise cost

2. Nature of the copyrighted work

Although the Supreme Court has ruled that the availability of copyright protection should not depend on
the artistic quality or merit of a work, fair use analyses consider certain aspects of the work to be relevant,

To prevent the private ownership of work that rightfully belongs in the public domain, facts and ideas are
not protected by copyrightonly their particular expression or fixation merits such protection.
11
Public domain information does get such protection-The Zapruder film of the assassination of President
Kennedy, was purchased and copyrighted by Time magazine. Its copyright was not upheld, in the name of
the public interest.

_______________________________________________________________________________
8
Tekla Corporation and another v Survo Ghosh ( 2014 Indlaw DEL 1506)
9
Campbell v. Acuff-Rose Music, Inc (510 U.S. 569)
10
2000 U.S. Dist.LEXIS 5669
11
Time Inc v. Bernard Geis Associates (293 F. Supp. 130 (S.D.N.Y. 1968))
 -------------------------------RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW --------------------15

3. Amount and substantiality

This factor analyses how much original work has been copied and how much it affects.

In Kelly v. Arriba Soft Corporation 12, the Court held that copying an entire photo to use as a thumbnail in
online search results is fair use, "if the secondary user only copies as much as is necessary for his or her intended use".

Harper & Row v. Nation Enterprises 13, in this case, the copying of 400 words from the original work
which is the heart of the work is not fair use but is infringement.

4. Effect upon work's value

The court investigates, what effect is due to defendants work and if the potential market of the real work
is affected , then its clearly an infringement. The burden of proof here rests on the copyright owner, who
must demonstrate the impact of the infringement on commercial use of the work.

In this case, the copyright owner, Universal14, failed to provide any empirical evidence that the use of
Betamax had either reduced their viewership or negatively impacted their business.

On other hand In Harper & Row 15, the case regarding President Ford's memoirs, the Supreme Court
labeled the fourth factor "the single most important element of fair use" .

In this case Campbell v. Acuff-Rose Music Inc, court held that

"all [four factors] are to be explored, and the results weighed together, in light of the purposes of copyrightwhen a
commercial use amounts to mere duplication of the entirety of the original, it clearly supersedes the object of the original and
serves as a market replacement for it, making it likely that cognizable market harm to the original will occur

So now applying the above test we can see that-

Purpose and character of the use home video is only of family purpose and is for just for sharing with
members of family and is not the public performance which affects the rights of real owner.

Nature of the copyrighted work-its a natural reaction of a small child on a rock song and its not a pre-
scripted performance in public.

Amount and substantiality-the child dances on home in a noisy atmosphere even when child does not
understand what the song means and no part of the song is being Reproduced.

Effect upon work's value-Family members will when see the video only they will notice the natural action
of the child on song and not for just song which is not clear, actions of child are only clear. Video footage
of child dancing does not in any way infringes the work, nor it does affect the rights of the owner.

__________________________________________________________________________
12
(280 F.3d 934 (9th Cir. 2002))
13
(471 U.S. 539 (1985))
14
Sony Corp v. Universal City Studios (464 U.S. 417)
15 (
Harper & Row v. Nation Enterprises 471 U.S. 539 (1985))
 -------------------------------RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW --------------------16

14
Anyone who . . makes a fair use of the work is not an infringer of the copyright with respect to such use.

Fair use is uniquely situated in copyright law so as to be treated differently than traditional affirmative
defenses.

17 U.S.C. 107 created a type of non-infringing use, fair use is "authorized by the law" .

The copyright holder must consider the existence of fair use before sending a takedown notification under
512(c).
 -------------------------------RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW --------------------17

2. The appellant had actual knowledge of fair use but still denied the law and did not comply with
the conditions laid down by the law and caused injury to the respondent.

Copyright holder need only form a subjective good faith belief that, a use is not authorized 16 and
"the'good faith belief' requirement in 512(c)(3)(A)(v) encompasses a subjective, rather than objective standard."

The Uniform Commercial Code (UCC) contains several provisions incorporating the concept of
good faith.

The Code originally defined good faith as honesty in fact in the conduct or transaction concerned.

UCC 1-201(19) (2006).17

Under the current UCC definition, good faith means honesty in fact and the observance of reasonable
commercial standards of fair dealing. UCC 1-201(20) (2011).

This definition has both subjective and objective components: honesty in fact is subjective, i.e. whether
the individual knew, as a factual matter, that the transaction was unauthorized;

while reasonable commercial standards of fair dealing imposes an additional objective standard, i.e.
whether the individuals actions were consistent with commercially reasonable standards of fairness.

Experi-Metal, Inc. v. Comerica Bank18, In this case a phishing attack caused the bank employee to give
secret information to third party but as he had no knowledge and no intent to fraud and acted in a
bonafide belief. But the court held it does not form a valid defense, but they (Bank) must had followed
certain guidelines to develop good faith defense, its not just a vocal and oral defense.

If a copyright holder ignores or neglects statutory holding that it must consider fair use before sending a
takedown notification, it is a triable offence and liable for damages under 512(f).
19
A copyright holder who pays lip service to the consideration of fair use by claiming, it formed a good
faith belief when there is evidence to the contrary, is still subject to 512(f) liability and if sufficient
evidence on the record to suggest that plaintiff intentionally targeted files it knew it had no right to
remove, he shall be liable.

In this case digital locker was provided by Hotfile and when sued, as it provided access to public for
digital uploaded files, it was held that Hotfile had secondary liability and will face secondary
infringement only.

_______________________________________________________________________
16
Rossi v. Motion Picture Ass'n of Am. Inc., MANU/FENT/0250/2004
17
http://apps.americanbar.org/buslaw/committees/CL130000pub/newsletter/201203/wilson-kerman.pdf
18
2011 WL 2433383 (E.D. Mich. 2011)
19
Disney Enters., Inc. v. Hotfile Corp., (et al, No. 1:2011cv20427 - Document 94 (S.D. Fla. 2011))
 -------------------------------RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW --------------------18

20
On other hand, where the takedown notice was served, when only there was listing of four URL links
that did not contain content matching the description of the purportedly infringing material, so no
infringement.
21
In another case, plaintiff knew -- and indeed that it specifically intended that its letters to OPG and
Swarthmore (opposite parties) would result in prevention of publication of that content. . . . The fact that
plaintiff never actually brought suit against any alleged infringer, suggests strongly that Diebold(plf.)
sought to use the DMCA's safe harbor provisions - which were designed to protect ISPs, not copyright
holders - as a sword to suppress publication of content rather than as a shield to protect its intellectual
property.

So this case shows how the section of Copyright Law of safe harbor to ISPs was intended to be misused.
22
The DMCA already requires copyright owners to make an initial review of the potentially infringing
material prior to sending a takedown notice.
("Any increased burdens imposed on the Commission as a result of its compliance with [the Consumer Product Safety Act]
were intended by Congress in striking an appropriate balance between the interests of consumers and the need for fairness and
accuracy with respect to information disclosed by the Commission.)

In the Current case, the Music Company did not follow the law and they issued the notice without
verifying the background and this is clear violation of the Law as required for sending the takedown
notice to the ISP which is clearly mentioned in the 512 (c) of the US copy right act. It also caused
harassment to Lenz and wrongfully showed that the work caused infringement and also they are liable
under the section 512(f), so Music Company must be punished and compensation must be given to Lenz.

Also here Lenzs legal right was violated, as the Universal Music did not allow her to share video on Net
and harassed by pushing in legal tangles, so she deserves compensation from the Universal Music and in
these cases, compensation was awarded by the courts even if there was no physical injury.
23
A patient was kept in confinement without any reason and then were given compensation by the court
order.
24
Persons were held in wrong confinement, and thus court held it as wrong and awarded compensation to
them.

So, we request the Court to do justice with Lenz and take action against the Music Company.

____________________________________________________________________
20
Rosen v.Hosting Servs., Inc., 771 F.Supp.2d 1219, 1223 (C.D. Cal. 2010)
21
Online Policy Grp. v. Diebold, Inc., (337 F.Supp.2d 1195, 1204-05)

22
Cf. Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc.,( MANU/USSC/0128/) 1980

23
Bostridge v Oxleas NHS Foundation Trust Court of Appeal (Civil Division) (2015 EWCA Civ 7)

24
R. (on the application of Abdollahi) v Secretary of State for the Home Department [2012] EWHC 878
 -------------------------------RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW --------------------19

PRAYER

Wherefore in the light of the facts stated, issues raised, authorities cited and pleadings advanced, it
is most humbly prayed before this Honorable Court that graciously:

1. Allow the respondent to share the video on net.

2. Award compensation for the injury caused due to appellant in accordance with Law of Torts.
3. As the court may think and pass any other order that it deems fit in the interest of justice, equity and
good conscience.

All of which is respectfully submitted.

Date: 1st March 2016 s/d 1. .........................

Place: New Delhi Deepinder Singh

Counsel ID: 15IP61018
(COUNSEL FOR THE RESPONDENT)