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Supreme Court Bumps 'Dancing Baby' Fair Use Case

By William Vogeler, Esq. on June 21, 2017 | Last updated on March 21, 2019

If you love dancing babies and the First Amendment, watch this video.

The happy toddler is rocking out to "Let's Go Crazy," by Prince. The video has been viewed nearly 2 million times by people looking for a feel-good moment in a sometimes dreary day.

What could be wrong with that? A copyright violation lawsuit by the music company?! Are you baby-caca kidding me?!

It started 10 years ago when Stephanie Lenz posted a YouTube video of her child pushing a toy around the kitchen and bouncing to the Prince beat. Universal Music Group, which held copyrights for the music, told her to take it down.

Lenz fought against the video's removal, won the dispute, and then sued Universal for putting her through the wringer. The Electronic Frontier Foundation took up her case under Section 512(f) of the Digital Millennium Copyright Act, which authorizes lawsuits against copyright owners for false or misleading takedown notices.

In 2015, the U.S. Ninth Circuit Court of Appeals said Universal must consider a user's "fair use" rights before sending a takedown notice. The court revisited the issue in 2016, clarifying that the copyright holder could not "consider" fair use simply through computer algorithms.

The EFF considered the decision half-baked and petitioned the U.S. Supreme Court, which has now turned down the appeal. The plaintiff may return to the trial court, but cost is a question.

The YouTube Remedy

To soften the copyright blow to its users, YouTube has a policy to pay for DMCA takedowns when the company believes they involve a clear fair use.

However, the damages are little more than nominal in the Lenz case because the video was down for only a couple of weeks. Corynne McSherry, EFF's legal director, said the case is important because DMCA abuse is "well-documented and all too common."

"Sadly, the 9th Circuit's ruling in this case did not go far enough to ensure that copyright holders would be held accountable if they force content to be taken down based on unreasonable charges of infringement, and we had hoped the Court would remedy that," she told ArsTechnica. "However, the strong precedent that copyright holders must consider fair use before sending DMCA takedown notices stands."

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