Dancing Baby Case Shouldn’t Reach High Court, Government Says

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By Anandashankar Mazumdar

The U.S. Supreme Court shouldn’t consider whether a mother’s YouTube video of her children dancing to a Prince song infringed the late singer’s copyright, the U.S. solicitor general’s office said ( Lenz v. Universal Music Corp. , U.S., No. 16-217, gov’t brief filed 5/4/17 ).

The case is important to internet users who want their online posts to be protected from what they see as unfair takedown notices, which require their content to be taken off the internet. It’s also important to copyright owners, who complain it is difficult to monitor the entire internet, searching for potential infringement of their works.

In the “Dancing Baby” copyright case, Stephanie Lenz sued Universal Music Publishing Inc. for sending a notice to YouTube to have her take down her 29-second-long video of her kids dancing to Prince’s “Let’s Go Crazy.”

The Digital Millennium Copyright Act of 1998 created the notice-and-takedown system, which protects online service providers like YouTube from being held responsible for infringement committed by its users. Under Section 512(f) of the DMCA, a copyright owner who knowingly sends a false takedown notice can be subject to money damages.

Ruling on motions for summary judgment, a federal district court said that Universal, Prince’s record label, should have considered whether the video constituted “fair use” of the copyrighted material before sending the takedown notice to YouTube. The U.S. Court of Appeals for the Ninth Circuit ruled that Universal needed to have a “good faith belief” that a post was infringing before it sent a takedown notice.

Washington-based copyright lawyer Jonathan Band told Bloomberg BNA that the solicitor general was saying, as a practical matter, that “a copyright holder fails to consider fair use at his or her peril.”

“The solicitor general is agreeing with the practical impact of the Ninth Circuit’s decision,” Band said. “Copyright holders need to build the fair use analysis into their notification system.”

Case Now a Decade Long

The “Dancing Baby” case hasn’t yet gone to trial on the merits of the underlying copyright claim, the solicitor general argued in his May 4 brief. If Lenz ends up winning at trial, her appeal will be moot because there will be no issue for the Supreme Court to consider. The high court last fall had asked for the administration’s opinion.

In her petition to the Supreme Court, Lenz said the Ninth Circuit didn’t go far enough. It isn’t enough that a copyright holder’s belief is in good faith, she argued. It should also be a reasonable belief.

“We are disappointed the Solicitor General did not support Ms. Lenz’s petition given the importance of this issue to millions of Internet users,” Corynne McSherry of the Electronic Frontier Foundation, which is representing Lenz, told Bloomberg BNA.

Universal also filed a Supreme Court petition for review, arguing that the appeals court went too far, making it even harder for copyright holders to challenge online infringement. The Supreme Court has already rejected Universal’s petition.

If the Supreme Court decides not to review the case, it will go back down to a federal district court for trial.

Lawyers for the record company didn’t respond immediately to a request for comment from Bloomberg BNA.

The Electronic Frontier Foundation and Keker & Van Nest LLP represented Lenz. Munger, Tolles & Olson LLP and Sidley Austin LLP represented Universal Music Corp.

To contact the reporter on this story: Anandashankar Mazumdar in Washington at AMazumdar@bna.com

To contact the editor responsible for this story: Mike Wilczek at mwilczek@bna.com

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