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Both sides request rethink in latest dancing baby judgement
By Chris Cooke | Published on Friday 23 October 2015
Both sides in the so called ‘dancing baby case’ have issued motions seeking a rethink of a recent ruling in the long-running legal battle.
This is the famous case where a woman called Stephanie Lenz posted a video of her child dancing to a Prince track onto YouTube, which Universal Music Publishing then had taken down on copyright grounds using the Digital Millennium Copyright Act’s takedown provisions. Lenz argued that the video was ‘fair use’ under US law, and then – with support from the Electronic Frontier Foundation – sued Universal for abuse of the DMCA.
This all happened in 2007, but the legal action is ongoing. As previously reported, last month the Ninth Circuit Court Of Appeals ruled that rights owners must indeed consider fair use rules before issuing a takedown notice, but it then said that that consideration need not be too rigorous, and providing the label genuinely doesn’t think fair use applies, well, that’s alright then.
Which was sort of good news for Universal. Though the same court rejected the major’s argument that – whatever the rights and wrongs here – Lenz had to prove “actual monetary loss” in order to pursue damages for the incorrectly taken down video.
Both sides have now requested a rethink on these points. The Electronic Frontier Foundation wrote in its filing that, under the Ninth Circuit ruling, “senders of false infringement notices could be excused so long as they subjectively believed that the material they targeted was infringing, no matter how unreasonable that belief”. This, the group argues, “rewards sloppiness and creates a perverse incentive for copyright owners to not learn about the law before sending a takedown”.
Meanwhile, in its filing Universal says that before going legal Lenz had “successfully used the ‘put-back’ procedure that Congress provided to address a takedown that a user believes is mistaken, and had done so without incurring any cost or injury”. Therefore, there isn’t a case to answer on the damages front, the major says.
It remains to be seen how the court now responds.
