After more than 10 years of litigation, Stephanie Lenz and Universal Music Publishing Group have resolved their dispute, often referred to as the “Dancing Baby” case.
Stephanie Lenz, represented by EFF, filed the lawsuit in 2007 after YouTube removed a video in response to Universal’s false copyright complaint. The video is a 29-second recording of her son dancing to the Prince song “Let’s Go Crazy.” The case raised the question of whether a copyright holder can use the Digital Millennium Copyright Act (DMCA) to take down an obvious fair use without consequence. Keker, Van Nest and Peters LLP were co-counsel on the case.
Section 512 of the DMCA created the so-called “notice and takedown” system, which gives service providers immunity from copyright liability for content posted by users if the providers take it down when they are notified that it is infringing. However, Section 512 notice often target lawful material as well. To discourage such abuse, Congress made sure that the DMCA included a series of checks and balances, including Section 512(f), which gives users the ability to hold copyright owners accountable if they send a DMCA notice in bad faith.
Lenz claimed that Universal’s takedown notice was a misrepresentation in violation of Section 512(f). In response, Universal argued that copyright owners should not have to consider fair use before sending DMCA takedown notices. The Ninth Circuit rejected this argument, holding that the DMCA requires copyright owners to consider whether works are lawful fair uses before sending takedown notices targeting them. The appeals court made clear that fair use is not an “infringement to be excused” but instead is not copyright infringement at all.
The Ninth Circuit also ruled that, when considering claims under Section 512(f), copyright holders should be held to a subjective standard. In other words, senders of false infringement notices could be excused so long as they subjectively believed that the material they targeted was infringing. EFF was disappointed with this aspect of the ruling as it entails that a subjective belief in infringement can excuse a wrongful takedown notice no matter how unreasonable that belief.
After the Ninth Circuit’s ruling, both Lenz and Universal petitioned the Supreme Court for review. The Supreme Court denied both parties’ petitions and the parties later agreed to a settlement.