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The “Dancing Baby” case shook the digital world last fall when, for the first time ever, an appellate court held that fair use should be treated as a necessary consideration when copyright holders send takedown demands. On Thursday, the 9th Circuit stood by that decision, but made a couple of noteworthy changes.
The case dates back to 2007, when a mother named Stephanie Lenz uploaded to YouTube a 29-second video of her toddler dancing to the Prince song “Let’s Go Crazy.” Universal Music Group sent a takedown notice to YouTube, claiming Lenz didn’t have permission to use the song, and YouTube removed the “dancing baby” from the Internet.
Lenz successfully petitioned YouTube to restore the video and then sued Universal, claiming the music giant failed to properly review her video before submitting the takedown notice.
Both sides moved for summary judgment and the district court denied the motions. When the 9th Circuit affirmed that decision in September, it created precedent — and many in the digital community took notice — by establishing that rightsholders must consider fair use before sending a takedown notice under the Digital Millennium Copyright Act.
Both sides asked the appellate court to reconsider before a fuller panel of justices there. On Thursday, the 9th Circuit panel denied this, but did amend its original opinion.
Down from 39 pages to 32, a side-by-side comparison shows the new opinion is largely verbatim — with a few notable changes and deletions.
The panel cut out several paragraphs concerning how automation might be leaned upon by companies like Universal that have to evaluate fair use on a mass scale — including this bit that had given those rightsholders some comfort in the initial opinion: “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.”
The panel also condensed its discussion of subjective beliefs, relying now primarily on case law established in the 2004 decision in Rossi v. Motion Picture Association of America.
“In Rossi, we explicitly held that ‘the ‘good faith belief’ requirement in § 512(c)(3)(A)(v) encompasses a subjective, rather than objective standard,’ and we observed that ‘Congress understands this distinction,'” writes circuit judge Richard Tallman. “We further held: ‘When enacting the DMCA, Congress could have easily incorporated an objective standard of reasonableness. The fact that it did not do so indicates an intent to adhere to the subjective standard traditionally associated with a good faith requirement.’”
The dissent by circuit judge Milan D. Smith Jr. is largely rewritten and focuses on what constitutes a subjective good faith belief. Smith holds that “a belief in infringement formed consciously without considering fair use is no good-faith belief at all.”
Smith goes further to talk about the potential consequences of a lax standard for subjective good faith belief.
“The majority’s unfortunate interpretation of § 512(f) would permit a party to avoid liability with only the most perfunctory attention to fair use. Such a construction eviscerates § 512(f) and leaves it toothless against frivolous takedown notices,” Smith writes. “And, in an era when a significant proportion of media distribution and consumption takes place on third-party safe harbors such as YouTube, if a creative work can be taken down without meaningfully considering fair use, then the viability of the concept of fair use itself is in jeopardy.”
Lenz’s attorney and Electronic Frontier Foundation legal director Corynne McSherry says she’s still digesting the opinion, but sent The Hollywood Reporter a few initial thoughts in an email.
“We’re disappointed that the court chose not to rehear the appeal, but we are pleased that the court stood by its earlier determination that rightsholders must consider whether a use is a lawful fair use before issuing a takedown notice,” McSherry writes. “We are also pleased that the court chose to excise language that some folks had interpreted to endorse the use of automated filters as a potential substitute for that fair use consideration.”
Universal’s attorney Kelly Klaus did not immediately respond to a request for comment.
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