There are plenty of examples to depict our broken copyright system, but the “dancing baby” case is one of the most notorious. That’s the one where Universal Music used the DMCA to take down a 29-second YouTube video of an adorable baby dancing to “Let’s Go Crazy” by Prince. Putting aside the legal questions, it is unclear what motivated Universal Music to go after this home movie where the Prince song was almost indecipherable. It’s impossible to imagine people were using the short video as a substitute for buying Prince albums, and of course, it’s impossible to imagine this sort of enforcement would help the troubled record industry earn goodwill from the public. But sadly, this is (or at least was) the state of copyright.
Most DMCA takedowns result in quiet removals of content, but this one resulted in 8 years of litigation that continues to this day. The mother of the dancing baby, Stephanie Lenz, teamed up with EFF and fought back. They sued Universal Music for violating Section 512(f) of the DMCA by misrepresenting their claim in the takedown notification. The fight continues, but the good news is this week the Ninth Circuit issued an opinion that affirmed some of the key principles at stake in the case.
Specifically, the panel of circuit judges held that copyright holders have to consider fair use before sending a DMCA takedown notification. The court also definitively explained something most of us already knew – fair use is authorized by law. It’s not simply an excuse for infringement or even an affirmative defense. It is outside the scope of copyright.
The decision wasn’t perfect. It went on to state that if copyright holders like Universal fail to consider fair use before sending a takedown, it just creates a question of fact for the jury to decide whether the rights holder had a good faith belief that the claim was valid. The court also made a somewhat confusing reference to copyright holders who use automated systems to determine what content to have taken down, stating that doing so was a reasonable solution but not explaining how that would possibly account for fair use.
Nonetheless, the key takeaway from the case was a win for fair use. It confirmed that exceptions and limitations to copyright are affirmative rights, and it created a mechanism to help deter sham DMCA takedowns. Given how easy it is to have content removed using the DMCA, it is increasingly the tool of choice for anyone looking to have content removed online, whether or not they have a valid copyright claim. This case should help deter at least the most blatant bad actors from misusing the statute in this way.
Perhaps the case also symbolizes a larger shift in how rights holders view reuse of their content. Not every use of copyrighted content is infringing, and not every use is a threat.