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Ninth U.S. Circuit Court of Appeals in San Francisco ruling says the copyright-holder must first consider whether video content amounts to "fair use" of their work, making it eligible to be legally posted. (Image: Screenshot YouTube/with overlay)

Federal Court Ruling Marks Win for Fair Use in 'Dancing Baby' Case

'Ruling sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech.'

Jon Queally

With a highly-anticipated ruling in what has become known as the "dancing-baby case" delivered on Monday, the Ninth Circuit Court of Appeals affirmed the importance of allowing for the "brief, non-commercial use" of copyrighted material by saying copyright holders must consider whether or not such use would be considered 'Fair Use' before issuing takedown notices to third-party hosting platforms like YouTube or social media outfits.

Officially called Lenz v. Universal, the case centers around Stephanie Lenz, who in 2007 posted a YouTube video of her two young children dancing while a song performed by Prince, and owned by the Universal Music Group, played in the background. Universal issued a takedown notice to YouTube and charged that Lenz had violated copyright law by posting the video.

With her case taken up by the legal team at the Electronic Frontier Foundation, a digital rights group based in San Francisco, the case quickly became a touchstone for various legal interpretations of copyright law and arguments surrounding censorship and the fair use doctrine.

In siding with Lenz, the court issued a decision that may have far-reaching implications by ruling that copyright holders "must consider the existence of fair use before sending a takedown notification."

As the San Francisco Chronicle reports:

Recording companies, motion picture studios and other copyright owners issue numerous takedown notices each day, targeting everything from home videos to campaign ads that include segments of songs or newscasts. When a copyright-holder tells a website like YouTube that one of its postings violates the holder’s exclusive rights to license the material, federal law requires that the posting be removed immediately.

But the Ninth U.S. Circuit Court of Appeals in San Francisco said the copyright-holder must first consider whether such a video amounts to “fair use” of the work, making it eligible to be legally posted. Fair use includes journalistic accounts and criticism, educational uses for teaching or research, and brief, private postings that don’t damage the commercial market for the work.

The law “requires copyright-holders to consider fair use before sending a takedown notification,” and those that fail to do so can be held liable for damages, said Judge Richard Tallman in the 3-0 ruling, the first on the issue by any appeals court.

"Today’s ruling sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech," said EFF Legal Director Corynne McSherry. "We’re pleased that the court recognized that ignoring fair use rights makes content holders liable for damages."

According to EFF, the ruling in the Lenz case comes at a critical time as heated political campaigns—specifically the current presidential primaries—will likely lead to a rash of copyright takedown abuse. As the group notes, criticism of politicians often includes short clips of campaign appearances in order to make arguments to viewers, and broadcast networks, candidates, and other copyright holders have sometimes misused copyright law in order to remove, or stall, such criticism from appearing on the Internet.

"The decision made by the appeals court today has ramifications far beyond Ms. Lenz’s rights to share her video with family and friends," said McSherry. "We will all watch a lot of online video and analysis of presidential candidates in the months to come, and this ruling will help make sure that information remains uncensored."

Journalist Joe Mullin, writing for Ars Technica, says the Ninth Circuit's opinion could strengthen the legal position of fair use advocates in other cases, but also noted it should not be considered a total victory when it comes to all the ways large media companies deal with copyright and takedown notices. Mullin explains:

The DMCA takedown landscape today is very different from 2007, when Universal and other big copyright holders were essentially doing takedowns manually. Today, DMCA notices are automated, and large copyright holders demand that thousands of links be removed at a time. Internet sites like Google remove millions of URLs each year in response to these massive DMCA notices.

The judges are optimistic that computer-driven copyright policing could strike the right balance. "We note, without passing judgment, that the implementation of computer algorithms appears to be a valid and good faith middle ground for processing a plethora of content while still meeting the DMCA's requirements to somehow consider fair use," Tallman writes. In situations where a video and audio track matches "nearly the entirety" of a sample submitted by copyright owners, a computer program could still be thought to have taken fair use into account. Copyright owners could use human employees "to review the minimal remaining content a computer program does not cull," he suggests.

The majority's near-endorsement of mass takedown routines is telling. While today's ruling undoubtedly strengthens EFF's view of fair use, it's unlikely to change much about the millions of takedown notices now being sent each year to Internet intermediaries. It's still a system that won't leave much room for those rare situations where a complete copy can still be fair use. If YouTube lawyers think their filter already takes fair use into account, and they likely do, then this ruling won't make them change anything.

And, of course, here's the dancing baby:


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