Dancing Baby Wins Victory For Copyright Fairness



The development of copyright law in the US has followed a predictable (and unfortunate) trajectory: over time, Congress and the courts have continually added ever more and stronger protections for copyright owners and minimized the importance of creative reuse and open access. So, when this trend occasionally reverses—like when the Internet community rose up to fight back against SOPA/PIPA—it’s worth taking note. This week’s court ruling in Lenz v. Universal (the famous “dancing baby” case) represents such a victory.

A quick refresher for those who haven’t been following the case closely since it was first filed way back in 2007: Stephanie Lenz posted to YouTube a short video of her son dancing to Prince’s “Let’s Go Crazy.” Despite the fact that the video was less than a minute long, and that the song was barely audible in the background, Prince’s record label, Universal, promptly went crazy and sent YouTube a notice claiming that Lenz’s video infringed its copyright.

Under the Digital Millennium Copyright Act (DMCA), content distribution platforms (like YouTube) can’t be held liable for their users’ alleged copyright infringements if, upon receipt of a notice of infringement like the one Universal sent, they remove the identified material from their sites. This essentially gives content owners the power to direct the removal of content from the Internet simply by asserting an infringement. Recognizing that, Congress included in the DMCA a provision that allows the poster of allegedly infringing content to challenge the accusation of infringement, which is exactly what Stephanie Lenz did, claiming that her video was a “fair use,” and thus didn’t infringe Universal’s copyright.

Fair use is one of the few doctrines in copyright law that permits people to reuse someone’s copyrighted work without permission. Think, for instance, of a book review, for which one might want to use an excerpt of the reviewed book. Or a parody, criticism, or other forms of speech protected by the First Amendment. Each of these requires use of the underlying work and doesn’t harm the market for that work by creating some kind of substitute for the original content. A short clip of a child dancing to a pop song seems like a quintessential fair use, so it’s hard to imagine how Universal could have believed that Lenz’s video infringed its copyright.

Despite this, content owners consistently and wantonly send infringement notices, no matter how preposterous their claims of infringement may appear to reasonable people. This allows certain parties to act as police of content on the Internet, giving copyright holders what nearly amounts to a blank check to remove all kinds of protected speech.

Thankfully this week’s ruling in Lenz restores some sanity to this regime. The Ninth Circuit ruled largely in Lenz’s favor, holding that a content owner must consider fair use before it has content removed from the Internet.

The Lenz ruling is important for a few reasons. First, it should make it much harder for content owners to abuse the takedown process. It’s incredibly expensive and time consuming for platforms (especially small ones) to respond to takedown notices, and because until now it was virtually impossible to face any repercussions for sending false notices, content owners were incentivized to send as many removal requests as they could, often for improper purposes. When combined with the absurdly large penalties facing companies accused of facilitating copyright infringement, the process of handling takedown notices makes running a content distribution startup difficult if not financially impossible.

Second, the decision should serve as a loud reminder that the tech world needs to get to work rebalancing our copyright laws to ensure that they’re actually promoting creativity and expression. It’s troubling that it took almost a decade to convince a court that content owners shouldn’t be allowed to accuse companies of hosting infringing material if they’ve done virtually nothing to confirm or deny that belief. But it’s not surprising, since for years, content industries were the only ones at the table in Washington lobbying for copyright rules.

There’s a long list of obvious fixes to the copyright system that will realign the law with copyright’s original purpose: to promote creative activity.  We could start by eliminating statutory damages awards that bear no relation to the actual harm suffered, and by precluding personal liability for entrepreneurs that have not knowingly violated any copyright laws but whose companies are accused of facilitating the infringing activities of their users. There’s much work to be done, but as Lenz shows, through dedicated effort, we can make incremental but important changes to the copyright regime.