By Chris Morran

The nearly decade-long legal battle over a 29-second YouTube clip of a toddler dancing to a barely discernible Prince song may end up going before the Supreme Court after free speech advocates representing the mother who shot that video petitioned the nation’s highest court.

Those familiar with the “Dancing Baby” case can probably skim the next few paragraphs, but here’s a short history of how a silly YouTube clip became a constitutional milestone.

Back in Feb. 2007, Stepanie Lenz uploaded a short video of her baby boy enjoying himself in the kitchen while the 1984 Prince and the Revolution song “Let’s Go Crazy” played in the background.

While record companies and music publishers now use automated scanning services to check for potential copyright violations, at the time Universal Music used actual human beings to review possible infringement.

Shortly after the video was uploaded to YouTube, it came to the attention of one such flesh-and-blood being at Universal who then included it on a list of Digital Millennium Copyright Act (DMCA) takedown notices sent to YouTube.

The DMCA allows for websites to avoid liability for content uploaded by third parties if the site responds in a timely matter to alleged copyright violations. This is why many large sites operate under a “take down first, ask questions later” approach.

Thus, the video was initially removed by YouTube and remained down for about six weeks. After retaining an attorney, the mom convinced the Google-owned site that her video constituted a protected “fair use” of the song and it was reinstated.

Calling Foul On Fair Use

One of the reasons copyright holders can use the DMCA to easily demand the removal of allegedly infringing content is a requirement in the law that these copyright owners are not misrepresenting the nature of the alleged violation. In fact, sending a merit-less takedown demand could make Universal “liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer.”

The mom felt that the use of a few seconds of background music in a video with no commercial intent constituted a clear example of a protected fair use. She also believed that this would have been clear to anyone who viewed the video, and that Universal should have known its takedown demand was frivolous.

Lenz, with the assistance of the Electronic Frontier Foundation, sued Universal Music in July 2007 [PDF], alleging that the publisher had failed to live up to its DMCA obligation by not considering the possibility that the short burst of music fell under the fair use umbrella.

Universal argued first that the DMCA doesn’t specifically mention fair use, so it has no obligation to consider this factor. Then it tried to convince the court that fair use is not an “authorized” use of a copyrighted work; it’s just an excusable use of that work, so it was right for Universal to file the takedown demand and then relent after considering fair use.

But the courts have disagreed. The District Court noted in 2008 that the Copyright Act’s section on Fair Use explicitly states that fair use is “not an infringement of copyright.”

Then last year, the Ninth Circuit Court of Appeals sided — at least on this aspect of the case — with Lenz, finding that, “Fair use is not just excused by the law, it is wholly authorized by the law.”

Sky-High Standards

The Ninth Circuit might have agreed with Lenz that Universal should have considered fair use before sending the takedown demand, but it arguably handed the case to the publisher by setting an incredibly high bar for Lenz or any other plaintiff in her situation to prove that a rights holder made a frivolous DMCA claim.

The appeals court ruled 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.

The appeals court says a jury in such a case would need to determine “whether Universal’s actions were sufficient to form a subjective good faith belief about the video’s fair use or lack thereof.”

More bluntly, if the rights holder can convince a jury it believed a DMCA takedown demand was sent in good faith, then it can’t be held liable — even if any reasonable person would have realized no infringement had occurred.

Ask The Supremes

And so we come to the actual new news for today. The EFF has filed a petition [PDF] with the Supreme Court on behalf of Lenz, arguing that the standard set by the Ninth Circuit has effectively rendered fair use protections against the DMCA “all but meaningless.”

Continues the petition: “Left undisturbed, the ruling in this case gives a free pass to the censorship of online speech, particularly fair uses. 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.”

Taking the appeals court’s logic even farther, the petition contends that there’s no reason a rights holder couldn’t defend themselves by claiming that their belief in a copyright violation was based on something told to them by a fortune teller.

By concluding that a mere belief was sufficient to evade liability for sending a DMCA claim, the petition argues that the Ninth Circuit “puts the DMCA in conflict with the First Amendment… by allowing private parties to do what no court could: Silence lawful expression, temporarily or permanently, based on nothing more than a legally baseless allegation.”

EFF Legal Director Corynne McSherry the Supreme Court needs to overturn the Ninth Circuit’s ruling or risk leaving the door wide open to abuse of free expression.

Adds McSherry, “Rightsholders who force down videos and other online content for alleged infringement — based on nothing more than an unreasonable hunch, or subjective criteria they simply made up — must be held accountable.”