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9th Circuit Revisits Dancing Baby, Edits out Robo-Screening

By Jonathan R. Tung, Esq. on March 22, 2016 | Last updated on March 21, 2019

The issue of baby Holden and his viral "dancing baby" is still kicking and making waves in the world of the fair-use debate. The ruling last year was technically a win for free-use proponents, but it could hardly have been called a knock out of the park.

The Ninth Circuit recently revisited its ruling for the EFF and clarified the otherwise confusing victory for the free-Internet advocacy group.

The Original "Dancing Baby"

Almost decade ago, Stephanie Lenz posted a video to YouTube of her toddler-son Holden dancing to Prince's Let's Go Crazy. She soon received a copyright takedown notice from Universal Music alleging violations of the company's copyright to the song. She sued the company back alleging bad faith and also fair use. That decision, generally considered a win for Lenz, was a bit confusing because of the wording.

"Valid and Good"

Although it was clear that the Ninth Circuit wanted to underscore a copyright owner's need to consider the defendant's fair use rights before issuing a Digital Millennium Copyright Act "takedown" notice, what was less clear was what "consider" meant.

A portion of the September opinion seemed to be open to the idea that computer algorithms could fulfill the "valid fair use consideration" prong of the test. This would mean that a human being wouldn't even need to be part of the case-by-case consideration process -- he could do all of his "considering" during the coding process.

"Searching or Intensive"

The original opinion also made it clear that the bar of "consideration" wasn't exactly high. Fair use consideration need not be "searching or intensive," said Judge Richard Tallman. This is somewhat reminiscent of "mere peppercorn" consideration being enough to support a contract.

Amended Opinion

Perhaps because of the inherent ambiguities with the word "consideration" the Ninth Circuit thankfully removed the all reference to computer algorithms being a "valid and good" type of fair use consideration; and did similarly with all language intimating that a copyright holder's consideration of fair use need not be searching or intensive."

Overall, copyright holders have had a tough couple of months. Between the Lenz case and YouTube promising to foot the bill for DMCA takedown notices, the trend has been firmly against overly zealous holders of copyright. Are we seeing the pendulum swinging the other way at long last?

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