On August 12, 2016, the Electronic Frontier Foundation (“EFF”) petitioned the Supreme Court on behalf of its client, Stephanie Lenz, to reverse the Ninth Circuit’s decision in Lenz v. Universal Music Corp., 801 F.3d 1126 (2015), better known as the “Dancing Baby” case.

In 2007, Stephanie Lenz posted a 29-second home video on YouTube of her two young children dancing to Prince’s “Let’s Go Crazy.” The Universal Music Group submitted a takedown notice to YouTube under the Digital Millennium Copyright Act (the “DMCA”), demanding that the video be taken down. EFF sued Universal on Lenz’s behalf, arguing that the requested takedown failed to pass the “laugh test” and was the exact kind of improper abuse of the DMCA that threatens free expression on the Internet. Previous blog posts discuss this issue in depth. Please see http://www.fr.com/fishTMCopyrightblog/ninth-circuit-issues-amended-opinion-in-dancing-baby-dmca-notice-and-takedown-case/

The Ninth Circuit Court of Appeals ruled that copyright holders must consider fair use before sending a DMCA takedown notice, pursuant to 17 U.S.C. § 512(f), but asubjective good faith belief that the allegedly infringing material is not fair use is sufficient.

EFF argues that the ruling allows senders of false infringement notices to be excused so long as they subjectively believe, without evaluating the four fair use factors set forth in Section 107 of the Copyright Act, that the material targeted is infringing, no matter how unreasonable that belief. EFF Legal Director, Corynne McSherry states,

“Rightsholders who force down videos and other online content for alleged infringement – based on nothing more than an unreasonable hunch, or subjective criteria they simply made up – must be held accountable…. If left standing, the Ninth Circuit’s ruling gives fair users little real protection against private censorship through abuse of the DMCA process.” EFF. 2016. EFF Asks Supreme Court To Review ‘Dancing Baby’ Copyright Case [Press Release]. Retrieved from https://www.eff.org/press/releases/eff-asks-supreme-court-review-dancing-baby-copyright-case

The EFF’s Petition requests reversal of the Ninth Circuit’s decision because it contravenes Congress’s intent to prevent abuse of the DMCA notice and takedown system and renders online fair use vulnerable to private censorship. The entire petition can be found here: https://www.eff.org/files/2016/08/12/petition_for_writ_lenz_v._universal_music_corp.pdf