Supreme Court turns down EFF’s “Dancing Baby” fair use case

The Supreme Court has decided not to take up the case of Lenz v. Universal, a ten-year-old copyright lawsuit initiated by the Electronic Frontier Foundation that helped determine the boundaries of "fair use."

Today's order leaves standing an earlier ruling by the US Court of Appeals for the 9th Circuit. EFF called that ruling a "strong precedent," while at the same time acknowledging it did not go far enough.

The lawsuit originated as an attempt by EFF to hold a copyright owner accountable for what the organization viewed as a wanton disregard for user "fair use" rights. The copyright owner in question is Universal Music Group, which issued a copyright takedown notice to Stephanie Lenz after she posted a video of her then three-year-old son, Holden, dancing to the Prince song "Let's Go Crazy." Universal is the copyright owner of "Let's Go Crazy."

Lenz contested the video's removal, and it was eventually restored. But EFF sued Universal Music Group and said that Universal should be made to pay damages under a section of the Digital Millennium Copyright Act that bars false or misleading DMCA takedown notices.

In 2015, the 9th Circuit issued a ruling that split the baby, so to speak. On the one hand, the 9th Circuit found that Universal did have a duty to at least consider "fair use" before sending a DMCA takedown.

However, the majority also held that if Universal had a "subjective good faith belief" that the video was not fair use, Universal may not be liable. The issue of whether or not Universal had such a "good faith belief" would have to be determined at trial.

Now that the 9th Circuit precedent stands, EFF will have to decide whether or not it wants to push forward with a jury trial. The damages boundaries have already been set by earlier judicial decisions, so Lenz wouldn't be able to get more than "nominal" damages. That wouldn't be much, since her video was removed for only a couple weeks and has remained up since, garnering more than 1.9 million views.

EFF Legal Director Corynne McSherry said she's disappointed the Supreme Court didn't take the case, since DMCA abuse is "well-documented and all too common."

She said:

Sadly, the 9th Circuit's ruling in this case did not go far enough to ensure that copyright holders would be held accountable if they force content to be taken down based on unreasonable charges of infringement, and we had hoped the Court would remedy that. However, the strong precedent that copyright holder must consider fair use before sending DMCA takedown notices stands.

A lawyer for Universal Music Group didn't immediately respond to a request for comment on today's order.

At the end of the day, the Lenz case is a clear demonstration that Section 512(f) of the DMCA, which allows for lawsuits and damages against copyright owners, is unlikely to ever be a powerful tool. From a user's perspective, it's hard to imagine what could be a more clear case of fair use than the Lenz video, which features less than 40 seconds of staticky-sounding background music. If copyright owners can say they satisfied the legal requirement by saying, "We considered fair use, but didn't see it," then not much can stop them from basically blowing off 512(f). Few future plaintiffs will be able to summon the legal resources that Lenz did.