After 10 years, the legal battle over a silly 29-second YouTube video of a baby dancing to a Prince song has hit a dead end, with the Supreme Court announcing this morning that it will not hear arguments in this high-profile copyright case.
The underlying question in this case is whether copyright holders have an obligation to consider “fair use” exceptions to copyright before sending takedown demands of possibly infringing content.
The Digital Millennium Copyright Act (DMCA) protects site like YouTube from being held liable for hosting infringing videos if the site responds in a timely manner to a takedown request. This is why YouTube and others now have a “take down first; ask questions later” policy toward copyright disputes.
At the same time, the DMCA requires that copyright holders not abuse this takedown process. If a copyright holder knowingly misrepresents a DMCA claim “shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer… who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.”
With that in mind, let’s fly back all the way to Feb. 2007, when Pennsylvania mom Stephanie Lenz uploaded the following clip to YouTube of her then-infant boy dancing (insofar as a baby can dance) while Prince’s “Let’s Go Crazy” plays in the background:
Keep in mind that this was still a nascent era for YouTube and streaming video. Copyright holders weren’t yet using automated web crawlers or YouTube’s content-identification system to automatically locate and screen possibly infringing content. Actual human beings at record companies and movie studios were tasked with sifting through clips to identify offenders.
Lenz’s clip came to the attention of one such bona fide human being at Universal Music, who flagged the video as infringing on its right to the classic Prince tune, and sent YouTube a takedown notice. YouTube, not one to go to bat on behalf of its users, obliged Universal’s DMCA takedown demand, and Dancing Baby was no more.
If you think it’s outrageous that Universal could demand the removal of a short video where the background song can barely be heard, you’re right. Federal copyright law includes “fair use” exceptions. Both the brevity and the obvious non-commercial aspect of the clip clearly put the Lenz video under that umbrella, meaning Universal had no authority to demand its removal.
Not only did Lenz successfully make that case to YouTube, which restored her video after about six weeks, but she (with representation by the Electronic Frontier Foundation) subsequently sued Universal in an attempt to hold the company accountable for its failure to consider fair use.
Universal argued that it has no obligation to consider fair use, since that factor is not explicitly referenced in the DMCA. The publisher also claimed that fair use is an excusable use — as opposed to an “authorized” use — of a copyrighted work, so Universal was correct to demand the takedown and then consider fair use.
But the district court judge hearing the case disagreed in 2008, noting that the Copyright Act’s section on Fair Use explicitly states that fair use is “not an infringement of copyright.”
Additionally, Universal claimed that requiring copyright holders to consider fair use before requesting a DMCA takedown would slow down the process and allow infringement to occur, but the judge countered that the DMCA “already requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice.”
Seven years later, Universal argued its case before the Ninth Circuit Court of Appeals, which again sided against the publisher, explaining that “Fair use is not just excused by the law, it is wholly authorized by the law.”
But it wasn’t really a victory for Lenz, as the appeals panel set an incredibly high standard for anyone to successfully prove that a copyright holder had made a frivolous DMCA claim.
A copyright owner cannot be liable “simply because an unknowing mistake is made, even if the copyright owner acted unreasonably in making the mistake,” explained the Ninth Circuit.
Instead, Lenz would have to demonstrate that Universal had “some actual knowledge of misrepresentation” when it filed that controversial takedown demand. In other words; it’s not enough that Universal made a frivolous DMCA claim, the company must have known it was sending a merit-less takedown request.
Given the split nature of the Ninth Circuit’s ruling, both Lenz and Universal asked the Supreme Court to chime in. Lenz and the EFF contended that the appeals court’s decision “gives a free pass to the censorship of online speech, particularly fair uses… An author could cause a hosting service to take a critical review offline, without fear of consequence, if she held the mistaken view that the reviewer’s use of a quote was unlawful. A political candidate who thought using an excerpt of her speech in a series of videos was necessarily infringing could flood her opponent’s YouTube channel with takedown notices and cause it to be taken offline altogether in the middle of an election season, again without consequence.”
Universal countered that Lenz is overlooking the safeguards built into the DMCA, that she and others have been able to restore their content through existing avenues, sometimes in just a matter of days.
The Supremes ultimately asked the U.S. Solicitor General to chime in with the federal government’s thoughts on the case, and last month the Justice Department filed a brief arguing that SCOTUS should not hear the matter, claiming that “The court of appeals correctly held that liability under the DMCA requires actual knowledge or willful blindness.”
Whether not that input was the tipping point, the Supremes announced without comment this morning that it had denied the petition to hear this case, meaning the Ninth Circuit’s complicated ruling stands. The matter now goes back to the district court where it seems unlikely that Lenz will be able to meet the willful blindness standard established by the appeals panel.
EFF Legal Director Corynne McSherry says the organization is disappointed by today’s decision.
“DMCA abuse is well-documented and all too common,” explains McSherry in a statement. “Sadly, the Ninth 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. However, the strong precedent that copyright holder must consider fair use before sending DMCA takedown notices stands.”