Takeaway: Before a takedown notice can be issued for copyrighted material under the Digital Millennium Copyright Act, fair use must be considered. If the copyright holder has a subjective good faith belief that the alleged infringement is not fair use, they will not be held liable in court for sending the takedown notice.

On June 19, the Supreme Court denied certiorari to Lenz v. Universal Music Corp., better known as the dancing baby case. A case ten years in the making, the dispute first arose in February 2007 when Stephanie Lenz posted a twenty-nine second clip of her 13-month-old son dancing to Prince’s song “Let’s Go Crazy.” The song is not audible for the entirety of the clip and the sound quality is poor. In June 2007, the copyright holder for “Let’s Go Crazy,” Universal, issued a takedown notice to YouTube claiming the video was a copyright violation. YouTube removed the video and informed Lenz of the claims for infringement. Later that month, Lenz sent YouTube a counter-notification arguing that the video was fair use and that it should be reposted. In July 2007, Lenz filed suit against Universal for misrepresentation under the Digital Millennium Copyright Act (DMCA) in an attempt to get a declaration from the court that this was a non-infringing use of the copyrighted song.

Lenz’s case was made possible with support from the Electronic Frontier Foundation (EFF) in an attempt to protect people’s ability to post videos online under the protection of fair use and free speech. EFF and Stanford University are working together to determine the best way to issue takedown notices under the DMCA. Staff attorney Marcia Hofmann said, “Copyright abuse can shut down online artists, political analysts or – as in this case – ordinary families who simply want to share snippets of their day-to-day lives. Universal must stop making groundless infringement claims that trample on fair use and free speech.”

The DMCA, passed in 1996, is currently the subject of criticism right now. There are many who believe that it needs to be updated to reflect the current laws and policies. According to the DMCA, the copyright holder is required to consider if the use of the copyrighted material was allowed by the copyright owner or by law. In September 2007, Prince said that he was planning to “reclaim his art on the internet,” and the following month, Universal released a statement saying that both Prince and Universal intended to take down all user-generated content involving Prince as a matter of principle. Based on those statements, Lenz argued that the takedown notices were being issued in bad faith and that much of the Prince related content were non-infringing examples of fair use.

The District Court held that copyright owners have to consider fair use defenses prior to issuing DMCA takedown notices, denying Universal’s motion to dismiss and Lenz’s misrepresentation claim. The court further stated that Universal’s concerns as to the burden in considering fair use before issuing takedown notices was exaggerated and that good faith consideration of fair use is an adequate defense against misrepresentation.

At the Ninth Circuit Court of Appeals, the District Court was upheld. The court held that while fair use is an affirmative defense, copyright holders have a “duty to consider – in good faith and prior to sending a takedown notification – whether allegedly infringing material constitutes fair use.” There is one caveat though—if the copyright owner subjectively believed in good faith that the video or other content was not an example of fair use, then they would not be held liable for issuing the takedown notice.

Lenz appealed to the Supreme Court on the issues of “Whether the [court] erred in concluding that the affirmation of a good-faith belief that a given use of material is not authorized ‘by the copyright owner, its agent, or the law,’ required under [the DMCA], may be purely subjective and, therefore, that an unreasonable belief — such as a belief formed without consideration of the statutory fair use factors — will not subject the sender of a takedown notice to liability under … the DMCA.”

If the case had been granted certiorari, Universal’s original takedown notice from 2007 would have been questioned under the Ninth Circuit’s holding. As certiorari was not granted, the case will now be remanded to a lower court if EFF decides to do so. EFF’s legal director Corynne McSherry stated, “Sadly, the 9th Circuit’s ruling in this case did not go far enough to ensure that copyright holders will 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.” Regardless, the strong precedent that a copyright holder must inquire into fair use before sending DMCA takedown notices still stands.