Stephanie Lenz, the Dancing Baby, and the Changing Landscape of Fair Use on YouTube

Last month marked the 10-year anniversary of the day that Stephanie Lenz uploaded a twenty-nine second clip of her one-year-old dancing to YouTube. The seemingly innocent video picked up very little steam across the web—the video was similar to any other home video, perhaps with an added dose of humor. This video would soon, however, become an international phenomenon because of a music clip playing in the background.
In 2007, Universal Music Group was still working on a comprehensive system that would allow them to accurately identify videos that infringed on their rights across the Internet. While they worked out the kinks, they had an employee, Sean Johnson, manually collect lists of videos that contained content that infringed the company’s rights. Universal held the rights of Prince’s commercial sound recordings, specifically including the rights for the hit recording “Let’s Go Crazy.”
When Johnson came across Stephanie Lenz’s video, featuring a low quality snippet of “Let’s Go Crazy” playing in the background, he filed a copyright violation against Lenz and filed notice to have the video removed from YouTube in line with the Digital Millennium Copyright Act.
For nine years, a fight over this seemingly small issue raged in federal court. Lenz filed a claim for misrepresentation pursuant to 17 U.S.C. § 512(f) in hopes to give teeth to the law that opposes DMCA abuse on the Internet. In March 2016, the Ninth Circuit filed a decision that carved clearer, yet still ambiguous rules for filing a takedown notice through the DMCA: (1) the filing party must consider the merits of a fair use argument before filing a takedown, (2) the filer must have subjective good-faith belief that they are reporting a legitimate violation of rights, (3) the filer would be liable under  § 512(f) if they misrepresented good faith belief in the takedown notice, (4) willful blindness is not excused, and (5) the uploader has the right to seek nominal damages.
On its face, this ruling seems as if it stands in favor of Lenz and content creators around the world. However, ‘good faith belief’ may not be enough of a protection for said creators. Though the Rossi case founded the definition, the Lenz case reinforced this definition in a very important way. The Ninth Circuit has completely left open the door for unreasonable good-faith belief when dealing with the DMCA. For that very reason, Lenz has filed a request for the Supreme Court of the United States to review the case.
These problems are not exclusive to arguments over the rights of music, nor do they exclusively exist between small creators and large corporations. YouTube’s Content ID system and the site’s dedication to comply with DMCA guidelines have opened up the door for repeated abuse of the copyright system.
The Content ID system that YouTube has implemented is simple: when videos are uploaded to the site, the videos are automatically scanned for infringing material using a proprietary system. If infringing material is found, a notice is sent to the owner of the infringed material, and that content owner has the ability to take action on the potential infringing content. If the owner of the potentially infringing content believes that the claim was improperly filed, they can dispute that claim in numerous ways – one of which is with a fair use argument.
This system has worked well on YouTube for years, but until 2016, it may have inadvertently provided benefits for individuals that improperly made use of the system. Prior to a change in the system last year, YouTube would immediately divert all monetization of potentially infringing YouTube videos to the individual that placed a copyright claim on the content. In concert with the Lenz decision, this meant that, as long as the individual filing the Content ID claim had good faith, they would benefit off of someone else’s fair use while being completely immune to 17 U.S.C. § 512(f). The only way to revert these funds to the fair use creator was to dispute and win the case, which locked the burden of proof to the defendant. This serves as a major legal issue, as many legal scholars believe that the Supreme Court’s burden of proof standards for fair use are ill defined, and the Supreme Court has not found that Fair Use is necessarily considered to be an affirmative defense. In fact, as shown in the Lenz opinion, Fair Use is “not just excused by the law, it is wholly authorized by the law.”
After creators took notice of this glaring issue and began to protest, YouTube changed their monetization system. Now, if someone submits a copyright claim on another person’s content, any monetization of the potentially infringing material is put into escrow until representatives from YouTube settle the case. That money is then given to the proper owners of the rights.
With all of these changes occurring, content creators on YouTube have begun to arm themselves with a wealth of knowledge regarding fair use, and have even established a group to fight and advocate against improper copyright claims. Ethan Klein of H3H3Productions established the “Fair Use Protection Account,” or “FUPA” for short, after raising over $125,000 for his own fight against aggressive copyright claims against his content. The funds in the account have been dedicated to assisting fellow creators in their fight against Content ID abuse.
Clearly, the tide of fair use on YouTube is ever changing, and a happy medium has not yet been found. While both Stephanie’s and Ethan’s cases are still ongoing, it seems that the legal system, and YouTube itself, is moving toward a system that recognizes fair use for what it is—fully authorized by the law.
 
 
Eric Zwilling is a JD candidate, ’18, at NYU School of Law.