Hard to believe that after nearly 10 years, the “Dancing Baby” lawsuit is still in process.
Even harder to believe the next step might be shimmying up to the dais at the US Supreme Court.
On Friday, the Electronic Frontier Foundation in Washington, DC, filed a motion on behalf of Stephanie Lenz, asking the country’s highest court to review the case to “ensure that copyright holders who make unreasonable infringement claims can be held accountable if those claims force lawful speech offline.”
Way back in 2007, Lenz did what hundreds, if not millions, of parents, aunts, uncles, cousins and grandparents do every day: She used her phone to take a short video of her then-infant son bopping around to some music. The music happened to be “Let’s Go Crazy” by Prince and, boy, that was an apt selection: The music in the 29-second video caught the attention of Universal Music Group, which owns the copyright to the song by Prince, which promptly sent a takedown notice to Lenz saying the YouTube video was in violation of the Digital Millennium Copyright Act (DMCA). They claim her use of the song in the video is infringing Universal’s copyright.
That this is still being fought in courts nine years after the notice was issued is nothing short of, well, crazy.
Last September, the US Court of Appeals for the Ninth Circuit, in San Francisco, ruled that prior to issuing a takedown notice, the copyright holder has to consider whether the original poster can make a “fair use” argument, which allows for the limited use of copyright-protected material without having to obtain express permission from the copyright holder.
“The statue provides that you’ve got to have a good faith belief that the infringer is infringing,” Michael Keyes, a copyright, advertising and trademark attorney with Dorsey & Whitney in Seattle, told me at the time. “The Ninth Circuit says you have to, as part of your analysis, considering whether a legit fair use argument can be made here.” He also said that the fair use doctrine is deliberately murky and designed to be assessed on a case-by-case basis.
The Ninth Circuit’s decision didn’t require copyright holders to be absolutely certain of their correctness before filing a takedown notice, but it did send the case back to a lower court.
Now, almost a year later, EFF, which has been acting on Lenz’s legal behalf, is asking the Supreme Court to overrule the portion of the ruling that allows senders of infringement notices to be excused from the subjective standard embodied within the fair use doctrine, “so long as they subjectively believed that the material they targeted was infringing, no matter how unreasonable that belief,” EFF says. Lenz and EFF are asking the Supreme Court to “ensure that the DMCA provides the protections for fair use that Congress intended.”
Corynne McSherry, EFF’s legal director, says that “Rightsholders who force down videos and other online content for alleged infringement—based on nothing more than an unreasonable hunch, or subjective criteria they simply made up—must be held accountable. If left standing, the Ninth Circuit’s ruling gives fair users little real protection against private censorship through abuse of the DMCA process.”
The question before the Supreme Court, according to the full 105-page petition, is whether the Ninth Circuit “erred in concluding that the affirmation of good faith belief that a given use of material use is not authorized ‘by the copyright owner, its agent, or the law,’ required under Section 512(c) of the Digital Millennium Copyright Act, may be purely subjective and, therefore, that an unreasonable belief—such as a belief formed without consideration of the statutory fair use factors—will not subject the sender of a takedown notice to liability under Section 512(f) of the DMCA.”
The Supreme Court is in recess for the summer and won’t reconvene until the first Monday in October. Remember, too, that the court is currently one member short, following the death of Justice Antonin Scalia in February.
It’s worth noting that, earlier this year, in response to both Universal and EFF asking the Ninth Circuit to reconsider its ruling, the court did make some changes.
The justices “cut out several paragraphs concerning how automation might be leaned upon by companies like Universal that have to evaluate fair use on a mass scale—including this bit that had given those rightsholders some comfort in the initial opinion: ‘We note, without passing judgment, that the implementation of computer algorithms appears to be a valid and good faith middle ground for processing a plethora of content while still meeting the DMCA’s requirements to somehow consider fair use,’” The Hollywood Reporter notes.