December 6, 2013 | By corynne mcsherry

Dancing Baby Files Opening Brief in DMCA Abuse Appeal

Stephanie Lenz’s effort to hold Universal Music Group accountable for abusing the Digital Millennium Copyright Act (“DMCA”) to take down a home video of her toddler “dancing” to Prince in the kitchen is one step closer to fruition. Today, EFF and co-counsel Keker & Van Nest LLP filed an opening brief on behalf of Ms. Lenz in the federal Court of Appeals for the Ninth Circuit. And, as we explain in the brief, the case concerns whether Internet users—from Ms. Lenz to remix artists to scholars to documentary filmmakers—have any real protection against wrongful accusations of copyright infringement.

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Over the years, the case has garnered a great deal of media coverage. One reason for the interest is that Ms. Lenz was accused of infringement for doing something parents do all the time: documenting and sharing precious moments in the lives of their children. And it was not infringement: Ms. Lenz’s video was an obvious fair use, and protected expression under the First Amendment. Unfortunately, Universal's takedown policy was blind to fair use, and, therefore, guaranteed to result in these kinds of takedowns.

Section 512(f) of the DMCA is supposed to prevent this kind of abuse, by allowing users to hold copyright holders accountable when they misrepresent, in a DMCA notice, that the copy posted online is infringing. Universal claims that Congress never intended to require content owners to consider fair use before sending such notices.

Universal is wrong. When it passed the DMCA, Congress didn’t intend to give copyright holders a broad power to make other people’s speech disappear, without robust protection against abuse. That’s why Congress required copyright holders to consider whether a given use is authorized by law, as well as whether the copyright owner or its agent gave permission.

The brief also urges the Court to clarify that the sender of a takedown notice is required make reasonable determinations about the law.  In other words, if a copyright holder is going to claim someone violates copyright law, it should first have some idea of what qualifies as a violation. Too often, we have seen copyright owners send takedown notices informed by only the vaguest notion of what actually qualifies as infringement. As we explain:

A law that grants a private actor the power to do what even a court cannot—cause the prior restraint of speech based on a purely ex parte review—alters not only the traditional contours of copyright protection but of our fundamental free speech doctrines. Such a law can only be tolerated, if at all, if the exercise of that power is tied to an obligation to understand what the law is, and to make reasonable assertions based on that understanding.

Ms. Lenz’s case offers the Ninth Circuit an opportunity to confirm that the DMCA balance remains what Congress intended and what the statute plainly provides. Let's hope the court takes it.


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