Both Sides of the 'Dancing Baby' Case Want it Reheard

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Both sides of the so-called "Dancing Baby" case are seeking a rehearing following an earlier ruling that only partially addressed the prickly topic of fair use and DMCA takedown notices for user-uploaded videos.

The dispute revolves around a 29-second video clip of a dancing baby that was uploaded in 2007 by Stephanie Lenz. In the clip, Prince’s "Let’s Go Crazy" can be heard in the background, which led Universal Music to order its removal by YouTube for allegedly violating the artist’s publishing rights. YouTube reinstated the video in mid-2007 after Lenz complained. 

The Electronic Frontier Foundation (EFF) sued Universal on Lenz’s behalf, arguing that the media giant improperly targeted a lawful example of fair use when they ordered the takedown. In September a federal appeals court in San Francisco handed a partial victory to Lenz by ruling that copyright owners need to do more than pay "lip service" and "must consider the existence of fair use before sending a takedown notification."

That said, the appeals court decided that Lenz failed to show that Universal was aware of a high probability that the video constituted fair use, and so she can't proceed to trial based on a "willfull blindness" theory. But the opinion also rejected Universal's argument that she had to demonstrate actual monetary loss from copyright misrepresentation, and so the case will go to trial anyway.

On Tuesday, the EFF filed a petition asking the Ninth Circuit to revisit parts of the Lenz v. Universal decision. “In particular, we are concerned about the court’s suggestion that copyright holders should be held to a purely subjective standard,” the EFF said. “In other words, senders of false infringement notices could be excused so long as they subjectively believed that the material they targeted was infringing, no matter how unreasonable that belief.”

The EFF goes on to argue that the subjective standard “rewards sloppiness and creates a perverse incentive for copyright owners to not learn about the law before sending a takedown.”

“While we remain pleased about the ruling that copyright owners must consider fair use before sending a takedown, we think that the Ninth Circuit has more work to do to ensure that the DMCA offers the protection for free speech that Congress intended.”

Universal also filed a petition for a rehearing on Tuesday, arguing that Lenz suffered no personal injury by having her video temporarily removed and thus “fails to present a case or controversy that this Court has jurisdiction to hear under Article III. The Court therefore should vacate its opinion and order the district court to dismiss the case.”

Universal argues that before Lenz filed suit against the label, she had “successfully used the ‘put-back’ procedure that Congress provided to address a take-down that a user believes is mistaken, and had done so without incurring any cost or injury.”