People from all over the world share videos daily on YouTube and other video sharing platforms that may include media-rights. The recent decision in the “dancing baby” case, which features the now famous video of a dancing toddler, focuses on this activity. This decision is important because of the effect it has on the public’s ability to engage in such video sharing, without being accused of violating copyrights.
On February 2007, Stephanie Lenz uploaded a 29-second video of her toddler dancing to the song “Let’s Go Crazy”, by Prince.  According to her, the intention was to share the video with her family and friends. At the time she posted the video, Universal Music Publishing Group (Universal) was Prince’s publishing administrator and responsible for enforcing his copyrights.
Universal sent YouTube a takedown notification stating that it had good faith belief that the video was unauthorized according to the §512 (c)(3)(A)(v) of Digital Millennium Copyright Act (DMCA).
After counter-notification Lenz reinstated the video. In April 2008, Lenz represented by the Electronic Frontier Foundation (EFF), sued Universal over the takedown notice. She sought damages and asked a federal court to protect the video under fair use and first amendment law.
In January 2013, a U.S. District Court decided copyright holders must consider fair use, but denied Lenz’s claim. The Court of Appeals affirmed the U.S District Court judgment.
This case raises several issues under the DMCA:
1-What should copyright holders consider before asking Internet service providers to remove the video due to copyright infringement?
2-What is a fair use of a copyright?
3-For what purposes the use made of a work is considered fair use?
According to the 9th U.S. Court of Appeals in San Francisco on a pre-trial judgment guideline issued on the September 14, 2015 in the case Lenz v. Universal Music Corp (“dancing baby case”), a copyright holder should consider if a potential infringing video is a fair use of copyright before asking YouTube to remove it from its website. Under  § 107 of DMCA, anyone who makes fair use of work is not infringer of copyright with respect to such use.
According to the Court of Appeals and the § 107 of the DMCA, the fair use of a copyright work for purposes like criticism, comments, news reporting, teaching, scholarship or research are not an infringement of copyright.
In addition, the Court of Appeals, determined the factors for what purposes the use made of a work are considered fair:
(i) the purpose and character of the use, including whether such use is of a commercial or nonprofit;
(ii) the nature of the copyright work;
(iii) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(iv) the effect of the use upon the potential market for or value of the copyrighted work.
Since a mere allegation of copyright infringement cannot result in the removal of content from the Internet, the decision brings important consequences. For example, as a Reuters article explains, “it will be tougher for copyright holders to remove alleged infringing content from the Internet by invoking the federal Digital Millennium Copyright Act, a 1998 law intended to curb movie and music piracy online.”
Additionally, the Court held that the copyright holder only needs to form a subjective good faith belief that the use is not authorized before issuing a takedown notification.
Also, the willful blindness doctrine may be used in certain cases to define whether a copyright holder knowingly, materially misrepresented that they held a good faith belief that the offending activity was not fair use.
Therefore, to win her case, Lenz would have had to demonstrate a genuine issue as to whether-before sending the takedown notification-Universal (1) subjectively believed there was a high probability that the video constituted fair use, and (2) took deliberate actions to avoid learning of this fair use. The Court said Lenz failed to provide evidence for the first factor, so she didn’t proceed to trial on a willful blindness theory.
However, the court ruled that Lenz could seek the recovery nominal damages for the unquantifiable harm she suffered under § 512 (f) DMCA.
The Court concluded that copyright holders cannot avoid their duty to consider- in good faith and before sending a taking down notice- if the allegedly infringing material constitutes fair use.
EFF Legal Director Corynne McSherry said in the foundation press release about the decision: “Today’s ruling sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech. … The decision made by the appeals court today has ramifications far beyond Ms. Lenz’s rights to share her video with family and friends. 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.”
Electronic Frontier Foundation (EFF) is currently working with Stanford’s Fair Use Project to develop a set of “best practices” for proper takedowns under the Digital Millennium Copyright Act.
On the other side, the New York Times reported the Recording Industry Association of America’s (RIAA) point of view: “ We respectfully disagree with the court’s conclusion about the D.M.C.A. and the burden the court places upon copyright holders before sending takedown notices”. Both RIAA and the Motion Pictures Association supported Universal, while Google, Twitter and Tumblr supported Ms. Lenz.
In conclusion, the YouTube video “the dancing baby” continues to play and the happy baby continues to dance since the main character in this particular case was the baby and not the song.
Fernanda Crispim is a LLM candidate, ’16, at the NYU School of Law.