Washington DC
08 May 2017
Reporter: Barney Dixon

US suggests Dancing Baby case be put to bed


The acting US solicitor general has advised the US Supreme Court to deny the closely watched ‘Dancing Baby’ copyright infringement case.

Last week (4 May), acting US solicitor general Jeffrey Wall argued: “Even if a question concerning the mental state required for DMCA liability otherwise warranted this court’s review, this case would not be an appropriate vehicle in which to consider it.”

The Supreme Court invited the solicitor general to file a brief expressing the views of the US in October last year, after multiple interested parties weighed in with their own opinions. The case focuses on Stephanie Lenz, the creator of the 29 second ‘Dancing Baby’ YouTube video, which featured her toddler son dancing to Prince’s Let’s Go Crazy.

Universal Music Group (UMG) sent a notice to YouTube claiming that Lenz had committed copyright infringement under the Digital Millennium Copyright Act (DMCA). The Electronic Frontier Foundation (EFF) took the case on behalf of Lenz and sued UMG for improper use of the DMCA.

In 2015, the US Court of Appeals for the Ninth Circuit sided with Lenz, ruling that the video fell under the fair use exemption of the DMCA, but said that UMG, along with other senders of false infringement notices, could be excused as long as they subjectively believed the material they targeted was infringing.

The EFF petitioned the Supreme Court to “ensure that copyright holders who make unreasonable infringement claims can be held accountable if those claims force lawful speech offline”.

Wall did say that the Ninth Circuit correctly interpreted Section 512(f) of the DMCA to require actual knowledge or willful blindness.

Section 512(f) provides that any person who misrepresents that material under the DMCA should be liable for damages.

But Wall added that the Ninth Circuit had “erroneously focused on the falsity of the copyright owner’s statement of good-faith belief, rather than on the falsity of its allegation of infringement”.

According to Wall, the Ninth Circuit’s analysis suggested that a copyright owner that sends a takedown notice without first conducting a fair use inquiry, “may be held liable for that omission alone, whether or not the challenged material is actually infringing”.

“That approach cannot be reconciled with the text of Section 512(f), which imposes liability on a copyright owner who ‘knowingly materially misrepresents’ that the challenged ‘material or activity is infringing’.”

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