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American Dream Betrayed

Important Win For Fair Use In 'Dancing Baby' Lawsuit

Appeals Court Affirms That Copyright Owners Must Consider Fair Use in Online Takedowns

A federal appeals court in San Francisco today affirmed that copyright holders must consider whether a use of material is fair before sending a takedown notice. The ruling came in Lenz v. Universal, often called the "dancing baby" lawsuit.

The Electronic Frontier Foundation (EFF) represents Stephanie Lenz, who - back in 2007 - posted a 29-second video to YouTube of her children dancing in her kitchen. The Prince song "Let's Go Crazy" was playing on a stereo in the background of the short clip. Universal Music Group sent YouTube a notice under the Digital Millennium Copyright Act (DMCA), claiming that the family video infringed the copyright in Prince's song. EFF sued Universal on Lenz's behalf, arguing that Universal abused the DMCA by improperly targeting a lawful fair use.

On Monday, the United States Court of Appeals for the Ninth Circuit ruled that copyright holders like Universal must consider fair use before trying to remove content from the Internet. It also rejected Universal's claim that a victim of takedown abuse cannot vindicate her rights if she cannot show actual monetary loss.

"Today's ruling sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech," said EFF legal director Corynne McSherry. "We're pleased that the court recognized that ignoring fair use rights makes content holders liable for damages."

Today's ruling in the Lenz case comes at a critical time. Heated political campaigns - like the current presidential primaries - have historically led to a rash of copyright takedown abuse. Criticism of politicians often includes short clips of campaign appearances in order to make arguments to viewers, and broadcast networks, candidates, and other copyright holders have sometimes misused copyright law in order to remove the criticism from the Internet.

"The decision made by the appeals court today has ramifications far beyond Ms. Lenz's rights to share her video with family and friends," said McSherry. "We will all watch a lot of online video and analysis of presidential candidates in the months to come, and this ruling will help make sure that information remains uncensored."

Keker & Van Nest LLP serves as co-counsel on Lenz v. Universal.

Here's the full decision from the Ninth Circuit.

More on this case here.

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Here's the video, which now has more than 1.3 million views. Good job, Prince!

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"In her suit, Ms. Lenz argued that her use of Prince's music was protected by fair use, which allows the use of copyrighted material under certain conditions like commentary, criticism or news reporting," the New York Times reports.

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Gizmodo explains:

The key part of Lenz's legal case revolved around Universal's blanket issuance of a DMCA notice, without first even considering if Lenz's use constituted fair use - something that's required under the DMCA.

Currently, big rights-holders like Universal and the RIAA use algorithms to generate DMCA takedowns - basically, they have computers trawling YouTube and Google, looking for video clips that violate their intellectual property, and send DMCA notices to whoever's hosting the video.

But in doing so, they aren't first considering if use of the material constitutes 'fair use', like a parody (or a baby dancing to said work).

Organizations like the Electronic Frontier Foundation have long pointed out that companies abuse the DMCA, by sending out (absurd) takedown notices without evaluating each case, and just hoping that the host will be intimidated into taking down the offending clip.

According to the precedent set in Lenz's case, rights-holders will have to evaluate each situation on a case-by-case basis, to see if it constitutes fair use. That means no more giant automated take-downs, which is a big win for an uncensored internet. And all because of one dancing baby.

And we think that's exactly what Prince meant when he told us to not let the elevator break us down. Only he was the elevator.

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Comments welcome.



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Posted on September 15, 2015


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