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'Dancing baby' ruling says fair use matters in copyright takedowns

A US appeals court has ruled that copyright holders must factor "fair use" rules into online takedown requests. Today, the Ninth Circuit issued a decision on Lenz v. Universal Music, a long-running copyright case involving Prince, a dancing toddler, and a YouTube copyright complaint. While the three-judge panel agreed with an argument about the importance of fair use, however, it said that there was not enough evidence to suggest that Universal had knowingly misrepresented its copyright claim.

The original case, filed in 2007, stems from a takedown order issued against YouTube user Stephanie Lenz. When Lenz posted a 29-second clip of her 13-month-old son dancing to Prince's "Let's Go Crazy." Universal Music Group — responsible for enforcing the copyright on Prince's catalog — asked YouTube to remove the video. Lenz filed a counter-notice, arguing that the short video was a fair use of Prince's song, and eventually got the video reinstated. With the backing of the EFF, she then sued Universal for allegedly filing a frivolous copyright takedown notice.

"Fair use is not just excused by the law, it is wholly authorized by the law."

In order to file a takedown notice, copyright holders must have a good-faith belief that someone is using their work illegally. But because the bar for getting content removed is fairly low, and there are rarely repercussions for filing obviously incorrect complaints, the system is open to abuse. Lenz and the EFF argued that Universal knew the Prince video was probably fair use and proceeded anyways, while Universal said that copyright holders could file notices without considering fair use at all.

The issue at hand wasn't whether the Prince video counted as fair use, but what role fair use plays in American copyright law. Fair use is decided on a case-by-case basis, based on four factors that might be weighed differently in each case. Where Universal argued that it was just a defense for otherwise illegal actions, though, presiding judge Richard Tallman wrote that "fair use is not just excused by the law, it is wholly authorized by the law" — so it has to be part of a copyright holder's legal considerations. While Tallman conceded that this process "need not be searching or intensive," the decision chips away at the perception that any use of copyrighted material is probably illegal, setting a higher bar for the copyright holders.

But Tallman believed that whether or not Universal made the right call, Lenz hadn't convincingly argued that it was in bad faith or willful blindness. "To be clear, if a copyright holder ignores or neglects our unequivocal holding that it must consider fair use before sending a takedown notification, it is liable for damages," he wrote. "If, however, a copyright holder forms a subjective good faith belief the allegedly infringing material does not constitute fair use, we are in no position to dispute the copyright holder’s belief even if we would have reached the opposite conclusion." Lenz can, however, still seek nominal damages for "unquantifiable harm" caused by the takedown.