The Non-Legacy of the Dancing Baby Case

The dancing baby is now almost a teenager...

Universal Music LogoIt’s been nearly 11 years since Stephanie Lenz, with the aid of the Electronic Frontier Foundation (EFF), filed her lawsuit against Universal Music.

The case attracted mainstream media attention, probed at gray areas of copyright law, saw a petition to the Supreme Court and even got the Justice Department involved.

Now, with news that the two sides have reached a settlement, we can finally look at the legacy of the case. Unfortunately, as we’ve discussed before, that legacy isn’t very deep.

For all of the time, effort and money spent on this case, no major victories were won, copyright law was not changed and the practical realities of dealing with false copyright notices were not shifted.

Worst of all, any change that did come from is likely already dated. It is, at most, a minor victory targeted at the internet as it was a decade ago, not as it is today.

Thee Basics of The Case

EFF LogoIn February 2007, Stephanie Lenz uploaded a now-famous 29-second video to YouTube. The video, which featured her 13-month old baby dancing to a barely audible Prince’s Let’s Go Crazy, attracted a Digital Millennium Copyright Act (DMCA) takedown notice from Universal Music in June 2007.

Lenz filed a counternotice to get the video restored but, with the aid of the EFF, filed a lawsuit against Universal Music saying that the notice was in bad faith.

According to Lenz, the video was clearly a non-infringing fair use and, as such, Universal had violated the law by filing the notice. The DMCA, under Section 512(f), anyone who “knowingly materially misrepresents” when filing a DMCA notice can be held liable for damages. According to Lenz, the video was so clearly a fair use that there was no way it wasn’t a material misrepresentation.

Universal, however, argued that they still did not believe that the video was a fair use and that, while it did not directly consider whether the video was a fair use, it did perform other tests that it claims amounted to a fair use test.

The lower court denied both side’s motion for summary judgment, resulting in both parties appealing to the Ninth Circuit. The court heard oral arguments in July 2015 and, in September 2015, upheld the lower court ruling.

In its decision, the Appeals Court said several things:

  1. Rightsholders, when filing DMCA notices did need to consider fair use.
  2. However, that they only need to form a subjective believe that use is not a fair use.
  3. Automated takedowns were fine so long as the algorithm considered fair use.

While the first point was considered a major victory by many, the second and third points greatly weakened that decision. The use of the subjective standard means a filer only has to believe a use is not a fair use to comply with the law, regardless of whether it is or not, and the court specifically allowed automated takedowns as long as there was some check to consider fair use.

To make matters worse for Lenz, the district court had previously ruled that her damages were likely nominal (meaning very small) and that she may only be entitled to a small percentage of her attorneys’ fees.

In short, even if Lenz were able to prove that Universal did not have a subjective belief, a tall order, she may still have not won any significant damagers or even the entirety of her attorneys’ fees.

Because of that, Lenz appealed to the Supreme Court, which asked the Justice Department for input on the case. The Justice Department advised the court not to take the case, which it declined to do in June 2017.

That sent the case back down to the lower court for a possible trial on Universal’s subjective belief. However, with a probable settlement, that trial seems to be averted.

When a Victory Isn’t a Victory

In 2015, the EFF and others were quick to paint the Appeals Court decision as a major victory.

But, while getting the court to rule that DMCA filers must weigh fair use is a major step, it was almost completely neutered by the rest of the ruling.

From a practical standpoint, proving that someone doesn’t have a subjective belief that a work is infringing is n