On August 12, 2016, Stephanie Lenz filed a petition to the Supreme Court for a writ of certiorari to review the Ninth Circuit’s decision in the “Dancing Baby” case involving her uploading a 29-second clip of her baby dancing to Prince’s “Let’s Go Crazy” song playing in the background. Universal Music Corp. sent a takedown notification under the Digital Millennium Copyright Act (“DMCA”) to YouTube to remove the video, YouTube removed it, and Lenz submitted a counter-notice protesting the removal and sued Universal for misrepresenting that the activity was “infringing” because it did not consider whether her use of the Prince song was a fair use.
The Ninth Circuit held that the DMCA requires copyright owners to consider whether potentially infringing material hosted by an online service provider is a “fair use” under the copyright law before issuing a takedown notice. Also, the Ninth Circuit held that the DMCA’s requirement that the copyright owner have a “good faith belief” that the activity was infringing was satisfied by a good faith subjective belief, stating: “[i]f . . . a copyright holder forms a subjective good faith belief the allegedly infringing material does not constitute fair use, we are in no position to dispute the copyright holder’s belief even if we would have reached the opposite conclusion.”
The petition asks the Supreme Court to decide whether that “good faith belief” can be any belief that is subjectively held, even if unreasonable, or rather requires an objectively reasonable good faith belief.
Lenz, which is represented by the Electronic Frontier Foundation, argues that the Ninth Circuit’s decision “gives a free pass to the censorship of online speech, particularly fair uses” and would allow bizarre beliefs, such as “a belief that copyright has been infringed based on information provided by a fortune teller” to “pass muster, as long as that belief is sincerely held.” Lenz also argues that the Ninth Circuit decision undermines fair use protection for online speech and thereby conflicts with the First Amendment.
It is worth noting that the Ninth Circuit’s holding that a person must consider fair use before issuing a takedown notice raises difficult practical issues of implementation in the real world. Understanding and balancing the four statutory fair use factors is one of the most complex aspects of copyright law with which both lawyers and judges struggle. How are small business and individuals without access to copyright counsel, and who believe their content is being infringed, supposed to perform an adequate fair use analysis, even under the Ninth Circuit’s subjective good faith belief standard? If, on the other hand, Lenz’s objectively reasonable belief standard is to be used, this would seem to require copyright owners to get an opinion of counsel before issuing a takedown notice. And if copyright owners sued under the DMCA by the person who uploaded the video rely on opinions of counsel as evidence of the objective reasonableness of their takedown notice, that raises the potential of costly and intrusive satellite litigation concerning issues of waiver of attorney/client privilege between copyright owners and their opinion counsel.
The Supreme Court may well grant certiorari in this case, as it has broad consequences for future users of the DMCA notice and takedown procedures, and for judges who will have to adjudicate the resulting litigations that seem to be an inevitable consequence of the Ninth Circuit’s decision.