9:14am PT by Eriq Gardner
A Landmark Legal Battle Over a Toddler Dancing to Prince Song Looks to Be Ending
All the way back in 2007, YouTube was still emerging as the go-to platform for video sharing. The website had just been acquired by Google for the bargain price of $1.65 billion when Stephanie Lenz would do something that would make legal history. Like many proud mothers, she posted on YouTube a cute video of her 18-month-old boy, Holden, dancing to the Prince song "Let's Go Crazy." Few would have ever imagined that the legal dispute that would follow would last more than a decade and even outlast Prince himself. But that's exactly what happened, and now this landmark case could be drawing to an end. On Wednesday, the parties involved in this court battle informed a magistrate judge that they had reached a settlement in principle.
After Lenz posted her video, Universal Music claimed a copyright violation and registered a takedown with YouTube. Lenz sent YouTube a counternotification that her video should be reposted because it didn't infringe the label's copyright. The video was offline for weeks.
But Lenz wouldn't stop there. Assisted by attorneys at the Electronic Frontier Foundation, which saw her ordeal as the perfect test case in the burgeoning era of social media, Lenz filed a lawsuit July 24, 2007 that alleges Universal had violated the Digital Millennium Copyright Act by knowingly misrepresenting its copyright. According to the plaintiff, it should have been self-evident that the cute toddler dancing video was a noninfringing fair use.
The dispute marked an important if overlooked aspect of the legacy of Prince himself. For years, the musician was hot and cold when it came to digital services that exploited his works — and here, Prince let it be known to Universal that he wasn't happy about what he saw in the Lenz video. For this, Prince received the "Raspberry Beret Lifetime Aggrievement Award" from EFF in its Takedown Hall of Shame.
As for the legal battle, it was the kind of brain-twister that had judges issuing opinions and reconsiderations. At one point, the Supreme Court even wanted the solicitor general to weigh in — and the case became one of the Trump administration's first amicus briefs to the high court.
Most important was what happened at the 9th Circuit Court of Appeals.
There, in September 2014, a panel of judges ruled that copyright owners indeed must consider fair use when sending takedown notices. But it wasn't quite the full victory that Lenz and EFF had been hoping to get. That's because the federal appellate court agreed with Universal that if a copyright holder forms a subjective good faith belief that allegedly infringing material does not constitute fair use, that's enough to shield the copyright holder from misrepresentation liability. The plaintiffs had wanted copyright holders to make a rigorous examination of objective criteria when dealing with the four factors that govern fair use.
Even in this decision, the 9th Circuit had to eat some of its words. Originally, it was suggested in the opinion from the panel that copyright holders could employ algorithms to examine fair use, but upon further consideration, the judges removed language on how algorithms could 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."
After being invited to give input, the solicitor general told the Supreme Court that a "significant legal error" had been made, that copyright owners shouldn't be liable "simply because an unknowing mistake is made," but nevertheless advised the high court to pass on the case. In June 2017, with the dancing toddler now in grade school, the Supreme Court denied a review.
Still, there was plenty left to settle. A potential trial would have tested Universal's subjective beliefs about the video in question. Lenz could have gone to trial and used any discovery she obtained about Prince's involvement to try to show that the label knew it was wrong when it caused a takedown.
But it looks like no trial will be necessary.
A minute order put out by the judge indicates the parties have reached a settlement in principle, although it's reported that everything is contingent on final approval of language in the deal. An attorney for EFF declined to comment while one of Universal's attorneys hasn't yet responded to an inquiry. Terms of the potential settlement haven't been made public.