A decade-old legal dispute over a 29-second YouTube clip featuring a baby dancing to a barely audible Prince tune may not have its day before the Supreme Court, at least if the nine justices take the suggestion of the Justice Department.
For those unfamiliar with this long-running case (more details below), it is asking the nation’s highest court to decide whether copyright holders should be held responsible when they make a “sincere but unreasonable” claim of copyright infringement.
SCOTUS has not yet decided whether to hear arguments in this dispute, which the Ninth Circuit Court of Appeals attempted to resolve (to neither party’s satisfaction) in 2015. Instead, last October it asked the U.S. Solicitor General to file a brief expressing the government’s view of this case.
More than six months later, Acting Solicitor General Jeffrey Wall has submitted that brief [PDF], making the case that it agreed with the core of the Ninth Circuit ruling — that a copyright holder must have actual knowledge that their infringement claim is false — and that the matter need not be taken up by the Supremes.
The court is not obligated to heed this input, but now that the justices have heard from the DOJ they can move on to finally deciding whether or not to grant this petition.
How Did We Get Here?
In Feb. 2007, Pennsylvania woman Stephanie Lenz used YouTube to post a short video of her baby dancing in the kitchen while the 1984 Prince and the Revolution song “Let’s Go Crazy” played, barely discernible, in the background.
The clip soon came to the attention of a Universal Music staffer responsible for looking at YouTube videos (yes, this was actually done by humans back then) to determine if they infringed on any of the company’s copyrights.
While Lenz’s video did use the Prince song without permission, it’s brevity and obvious non-commercial nature make it a clear case of a protected fair use. Nevertheless, Universal filed a Digital Millennium Copyright Act (DMCA) takedown notice with YouTube, and the video was promptly removed from the site.
However, after about six weeks — and only after obtaining legal representation — Lenz was able to get her grainy, silly video restored to YouTube, where it now has more than 1.9 million views; probably about 1.89 million more than it would have had if Universal had not issued the takedown demand.
While some copyright holders use their DMCA takedown authority with apparent disregard to common-sense — like when Warner Bros. accused its own website of copyright infringement, or when Columbia Pictures made DMCA claims about any video using the word “pixels” — the law actually prohibits copyright owners from misrepresenting the nature of an alleged violation. In fact, sending a merit-less takedown DMCA demand could make Universal “liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer.”
So in 2007, Lenz and the Electronic Frontier Foundation sued Universal Music, alleging that the publisher had not considered the possibility that the short burst of music in the dancing baby video fell under the fair use umbrella.
Universal argued that it has no obligation to consider fair use, since that factor is not explicitly referenced in the DMCA. The publisher also claimed that fair use is an excusable use — as opposed to an “authorized” use — of a copyrighted work, so Universal was correct to demand the takedown and then consider fair use.
But the court disagreed. In 2008, a federal judge in this case noted that the Copyright Act’s section on Fair Use explicitly states that fair use is “not an infringement of copyright.”
In its ruling, the Ninth Circuit Court of Appeals explained that “Fair use is not just excused by the law, it is wholly authorized by the law.”
However, the appeals panel’s ruling also set an incredibly high standard for Lenz — or anyone else in her situation — to prove that a copyright holder had made a frivolous DMCA claim, stating that a “copyright owner cannot be liable simply because an unknowing mistake is made, even if the copyright owner acted unreasonably in making the mistake.”
Instead, Lenz must demonstrate that Universal had “some actual knowledge of misrepresentation” when it filed that controversial takedown demand. In other words; it’s not enough for Universal to have made a frivolous DMCA claim, it must have known it was sending a merit-less takedown request.
A Court Supreme
In 2016, Lenz petitioned the Supreme Court, arguing that the standard set by the Ninth Circuit has effectively rendered fair use protections against the DMCA “all but meaningless.”
“Left undisturbed, the ruling in this case gives a free pass to the censorship of online speech, particularly fair uses,” read her petition. “An author could cause a hosting service to take a critical review offline, without fear of consequence, if she held the mistaken view that the reviewer’s use of a quote was unlawful. A political candidate who thought using an excerpt of her speech in a series of videos was necessarily infringing could flood her opponent’s YouTube channel with takedown notices and cause it to be taken offline altogether in the middle of an election season, again without consequence.”
Universal countered that Lenz is overlooking the safeguards built into the DMCA, that she and others have been able to restore their content through existing avenues, sometimes in just a matter of days.
What The DOJ Thinks
“The court of appeals correctly held that liability under the DMCA requires actual knowledge or willful blindness,” explains the Solicitor General’s brief.
The DOJ also notes that this particular portion of the DMCA does not include language used elsewhere in the law that would lessen this “actual knowledge” requirement.
For example, the section of the law that prohibits people from distributing copyrighted works with altered rights-management protections on them (think of DVDs or video games that have been tweaked to remove the copy-protect software), says people are liable for breaking this law even if they only had “reasonable grounds to know” what they were doing.
This sort of language is absent from the specific provision which holds copyright owners liable for frivolous DMCA claims.
Additionally, the DOJ contends that Lenz’s petition is raising questions about matters that were not considered in the district or appeals court, and should not be addressed by SCOTUS until after a court has judged either for or against Lenz in the underlying matter.
“If petitioner prevails at trial, the argument she seeks to raise now will become moot,” writes the DOJ. “And if she does not prevail, she can raise that argument — along with any others she may have — in a single petition for a writ of certiorari following a final judgment.”
It’s now up to SCOTUS to decide whether to take this case on or not.