On September 14, the Ninth Circuit Court of Appeals issued its opinion in what has become known as the “dancing baby” case.  The Ninth Circuit’s ruling, which marked a victory for proponents of fair use but did not go as far as some of those proponents would have liked, requires copyright owners to consider fair use before sending a takedown notification to online services, such as YouTube, to remove from their website a video that incorporates, without their permission, material over which they own the copyright.

Sparking this controversy, a Pennsylvania mother named Stephanie Lenz in February 2007 posted a video to YouTube of her toddler dancing to Prince’s song “Let’s Go Crazy.”  After she posted the video, Universal Music sent a takedown notification to YouTube claiming that the video violated their rights to the song.  YouTube obliged and removed the video, igniting criticism from those who believed Universal was going too far in its online copyright policing practices; as it turned out, the takedown notification listed more than two hundred YouTube videos that Universal alleged made unauthorized use of various Prince songs.

In July 2007, Lenz, represented by the Electronic Frontier Foundation on a pro bono basis, sued Universal in the U.S. District Court for the Northern District of California, claiming tortious interference and requesting declaratory relief.  The court, however, granted Universal’s motion to dismiss.  However, Lenz filed a Second Amended Complaint (her original complaint had been amended once prior to dismissal) in April 2008.  The Second Amended Complaint alleged only a claim for misrepresentation under §512(f) of the Digital Millennium Copyright Act, which holds liable any person who “knowingly materially misrepresents . . . that material or activity is infringing.”  This time, Lenz survived dismissal, and the court later denied both parties’ motions for summary judgment in January 2013.  The court then certified its summary judgment order for interlocutory appeal and stayed proceedings pending resolution by the Ninth Circuit.

The Ninth Circuit, in its decision, ruled that the takedown notification procedures set out in §512, which require copyright holders, before sending takedown notifications, to believe in good faith that the material is “not authorized by the . . . the law” require copyright holders to make a good faith determination that the use of its material does not fall within the fair use exception of 17 U.S.C. §107 before sending the takedown notification.  With this ruling, the case is now set for trial to determine whether Universal, in sending the takedown notification to YouTube, believed in good faith that the use of Prince’s music in the video was not unauthorized by copyright law, including the fair use exception.

The case represents yet another power struggle between the entertainment industry and the technology industry.  The tension between the two is sure to rise in the coming decades and compromises will need to be struck.  One such example, in the streaming context, is the concept of Fair Trade Music, but there is undoubtedly more work to do in bridging the gap between these two vitally important industries within our society.

Chris Borns

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