U.S. Ninth Circuit - The FindLaw 9th Circuit Court of Appeals Opinion Summaries Blog

Dancing Baby Wins in Court: Copyright Holders Must Consider Fair Use

Soon after Stephanie Lenz uploaded a YouTube video of her toddler dancing, she received a notice from Universal Music Group: take down the 29 second clip or risk being sued. Lenz's son had been baby-dancing to Prince's "Let's Go Crazy" ... and Universal said that use of the fuzzy background track violated copyright law.

The Pennsylvania mother didn't take down her video, however. Instead, she got pro bono representation from the Electronic Frontier Foundation and won big in the Ninth Circuit on Monday as the court announced that companies must consider fair use before sending take down notices. The ruling breaks new ground in IP law, protecting consumers from meritless copyright infringement threats.

The Dancing Baby Case

Lenz's case gained national attention, largely because her video represented the kind of Internet activity millions of people engage in without a second thought: sending a quick snapshot of one's life out into the cybersphere, regardless of the background music. But to Universal, those few seconds of a Prince song were a serious copyright violation -- or at least it claimed in its take down notice. Lenz and the Electronic Frontier Foundation, however, were equally certain that the video constituted fair use. Worse, they argued, no reasonable person could find otherwise -- Universal had sent out the notice knowing there was no copyright violation.

Instead of waiting for further action from Universal, Lenz sued. She argued that Universal had violated the Digital Millennium Copyright Act by misrepresenting in its notice that her use of the song was a copyright infringement. Universal moved to dismiss the suit, arguing that fair use wasn't something they had to consider before sending take down notices. Rather, to Universal, fair use was simply a defense to be raised after a copyright infringement action had been initiated.

The court sided with Lenz, setting strong fair use precedent. Copyright holders must consider fair use before sending take down notices, the Ninth Circuit ruled. Further, misrepresenting fair use as a copyright violation creates triable issues as to the holder's "subjective good faith belief" that use was unauthorized. The case could now go ahead to trial to see if Universal ever actually believed Lenz was really violating copyright law.

The Changing Face of Copyright Notices

Copyright holders must now think twice before sending out meritless take down notices. The Electronic Frontier Foundation hailed the ruling as "a strong message that copyright law does not authorize thoughtless censorship of lawful speech."

But, as Arstechnica notes, IP enforcement is not the same today as it was in 2007, when Universal first went after Lenz. Instead, most DMCA take down notices are automated and sent out en masse, as copyright holders scan the web for content that almost fully replicates protected material. The Ninth Circuit noted, "without passing judgment," that the use of such algorithms seems to be "a valid and good faith middle ground" for considering fair use.

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