The ‘Dancing Baby’ Lawsuit Will Shape Future of Fair Use

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When a Universal Music Group employee sent a routine notice to a San Francisco Bay Area mother back in 2007 ordering her to take down a grainy YouTube video of her son dancing, there’s no way he could have known what he was about to stir up.

The disagreement over the 30-second video-a grainy shot of Stephanie Lenz’s son Holden dancing around the kitchen to the Prince song “Let’s Go Crazy,” now viewed more than 1 million times-has turned into a three-year saga. The case is now moving into its final stages.

Universal, which administers the copyrights to Prince’s songs, claims that the “dancing baby” video violated copyright law because of the Prince background music. Lenz, after initially taking down the video, later put it back up on YouTube and called the Electronic Frontier Foundation, a digital rights group, which promptly took her case pro bono and filed a countersuit against Universal in a San Jose federal court. Last week, lawyers from EFF and Universal filed opposing briefs arguing for summary judgment. A decision on those motions could come in a matter of months, and will likely decide the case.

However it turns out, the case will help define the limits of “fair use” in the digital age. Fair use is the doctrine that allows the use of copyrighted material if it’s used for criticism, commentary, or transformed in a meaningful way. If copyright owners have to give greater consideration to fair use before sending takedown notices, it could make it more difficult for them to police sites like YouTube; advocacy groups like EFF say that’s a small price to pay for defending fair-use rights.

The Digital Millennium Copyright Act, or DMCA, is the law that provides a system of notice-and-takedown that allows copyright owners to get their content off user-generated sites by simply sending an email. But a section of the DMCA also creates a provision to win damages from a copyright holder who “knowingly materially misrepresents” that material is infringing. That is what the EFF and Lenz are alleging.

Keker & Van Nest lawyer Michael Kwun, who volunteers for EFF and is representing Lenz, says he’s unaware of any legal judgment holding a copyright owner liable under the DMCA’s misrepresentation provision. EFF lawyers would like to get such damages from Universal, and have found a sympathetic client in Lenz. Because Lenz’s use of the Prince song was “obviously” fair use, the record company’s takedown notice is the kind of misrepresentation that Congress sought to punish, EFF lawyers argue.

The Lenz video was clearly “noncommercial and transformative,” writes Kwun. In addition, the Lenz video uses only a small portion of the original song-the whole video is less than 30 seconds long-and there is “no plausible market harm” to Prince.

In response, Universal first repeats an earlier argument-that there’s no such thing as “obvious” fair use, and copyright holders aren’t required to consider fair use at all before sending a takedown notice. Next, it argues that even if there are “extremely rare” cases where fair use is obvious, the Lenz case is definitely not such a case. Since Lenz and her attorneys at EFF had to discuss whether the post was fair use-if it wasn’t self-evident to them-then it couldn’t be self-evident to anyone, write Universal’s lawyers.

For some large content companies, sending takedown notices removing their content from user-generated-content sites like YouTube has become a routine, frequent activity. A Universal lawyer who testified in the Lenz case said that “at times Universal had to ask YouTube to remove hundreds of videos per week,” and that between June and August of 2007 more than one-thousand videos posting were taken down based on Prince music copyrights alone. Other companies have chosen to leave videos incorporating their content up on YouTube, which typically offers to split ad revenue with copyright owners on videos that incorporate copyrighted music or video. But litigation over takedown notices is rare.

The damages EFF is requesting under the claim — known as a 512(f) — are modest, and vastly outweighed by the legal resources expended on both sides. The organization wants to collect $62.50 to compensate Lenz for the 10 hours she spent on the issue prior to filing suit, and $1,275 for pre-filing legal work done by EFF lawyer Marcia Hoffman.

But winning any damages over a DMCA takedown notice would still be a precedent-setting victory-one which might enable more lawsuits against copyright owners, perhaps by plaintiffs with more significant legal expenses than Lenz.

In any case, Kwun and his colleagues at EFF hope to make copyright owners think twice before sending takedown notices that could be seen as overreaching. “A lot of takedown notices, right or wrong, never get challenged,” says Kwun. “When you get these notices, it can be very intimidating.”

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