loss of YouTube’s hosting services and chilling of her free speech, lost time and resources, and
attorneys’ fees and costs. The court concluded that Lenz could not demonstrate damages based
upon the loss of YouTube’s hosting services and the chilling of her free speech. With respect to
lost time and resources, Lenz requested that she be compensated at minimum wage for at least
ten hours she spent before filing her lawsuit on obtaining counsel, figuring out how to send
counternotices to YouTube and ensuring that her video was restored to YouTube. The court
noted there was no reported case indicating definitively whether Lenz could recover for the time
and resources she had expended, but she might be able at least to recover minimal expenses for
electricity to power her computer, Internet and telephone bills and the like. With respect to
attorneys’ fees and costs, the court noted that, although an attorney at the Electronic Frontier
Foundation (EFF) had helped Lenz prior to commencement of litigation on a pro bono basis, it
was not clear that the attorney’s equivalent normal billing rate for the time spent on this pre-
litigation work could not form the basis for a damages claim. Lenz had pointed to language in
her retainer agreement with EFF requiring her to assign any recovery up to the full amount of
EFF’s fees and expenses. The court therefore concluded that Lenz might recover the pro bono
fees if she prevailed on her DMCA claim. Accordingly, the court denied Universal’s motion for
summary judgment that Lenz was precluded from recovering any damages for her DMCA
claim.^2928
(vii) UMG Recordings v. AugustoIn UMG Recordings, Inc. v. Augusto,^2929 UMG brought a claim for copyright
infringement based on Augusto’s sale on eBay of copies of promotional CDs he had received
from UMG in advance of general commercial release. The promotional CDs had been labeled
with language stating that they were licensed to the intended recipient for personal use only and
that acceptance of the CD constituted an agreement to comply with the terms of the license,
which prohibited resale or transfer of possession. UMG sent notices to eBay under the DMCA
alleging that sale of the promotional CDs was infringing, in response to which eBay temporarily
stopped Augusto’s auctions and suspended his eBay account, although eventually his account
was restored.^2930 The court rejected UMG’s claim for copyright infringement, ruling that the
distributions of the CDs should be treated as “sales” for purpose of the first sale doctrine,
notwithstanding the “license” agreement because recipients were free to keep the copies forever,
UMG received no recurring benefit from recipients’ continued possession, and the transfer was
(^2928) Id. at 24-29. In its previous opinion, the court had ruled that fees incurred during litigation were not
recoverable. Universal argued that EFF’s pre-litigation work was so intertwined with the litigation that the pre-
litigation fees should not be recoverable. Universal had not cited authority holding that “intertwined” fees are
not recoverable, and the court was not prepared to conclude on the record before it that in fact the pre-litigation
and post-litigation fees were so intertwined that the former would not be recoverable under the court’s prior
ruling. Id. at 29 n. 6.
(^2929) 558 F. Supp. 2d 1055 (C.D. Cal. 2008), aff’d, 628 F.3d 1175 (9th Cir. 2011).
(^2930) Id. at 1058.