Dancing-Baby Video Dazzles the Ninth Circuit

     SAN FRANCISCO (CN) – A toddler dancing to a Prince song in a YouTube video occupied the Ninth Circuit Tuesday morning, as the court explored how copyright holders are supposed to assert their rights when they suspect infringement online.
     The case harkens back to the winter of 2007, when Stephanie Lenz, of Gallitzin, Pa., filmed a short home movie of her son Holden dancing while the Prince song “Let’s Go Crazy” played in the background.
     “The video bears all the hallmarks of a family home movie,” court documents said. “[I]t is somewhat blurry, the sound quality is poor, it was filmed with an ordinary digital video camera, and it focuses on documenting Holden’s ‘dance moves’ against a background of normal household activity, commotion and laughter.”
     The entire “performance” lasted 29 seconds, with “Let’s Go Crazy” heard for about 20 of them, the documents state. Lenz posted the video on YouTube to share it with family and friends, particularly her mother in California.
     Nevertheless, Prince allegedly pushed Universal Music, which was his publishing administrator at the time, to tell YouTube to take down the toddler video, along with 200 others making unauthorized use of his music.
     Lenz was put on notice that her use of Prince’s music violated the Digital Millennium Copyright Act, and that if she violated it again, she could lose her YouTube account and any videos she’d uploaded to it.
     Following the procedures spelled out in the Act, Lenz requested that YouTube repost the video, which was called “Let’s Go Crazy #1,” and she sued Universal Music, arguing that giant entertainment company misrepresented the basis for its takedown request.
     Universal did not conduct a fair use analysis, she said, and it should be obvious that the video was fair use of copyrighted material. The copyright law’s fair use doctrine allows use of copyrighted material without permission from the rights holder in certain circumstances.
     Lenz said her “use of the Prince song ‘Let’s Go Crazy’ is a self-evident non-infringing fair use.”
     “(T)he Holden Dance Video non-commercially transforms the song into partially obscured background music for a family video about a toddler just learning to dance, uses only a small, nonsubstantial portion of the original work, and does not substitute for the work or harm any market for the work,” she claimed in San Jose Federal Court.
     U.S. District Judge Jeremy Fogel refused to dismiss the case or to hand Lenz a victory without a trial.
     Fogel ruled that Lenz might persuade a jury of her claims that Universal showed willful blindness to the possibility of fair use, and that fair use was self-evident.
     He also said Universal could tell a jury to consider its position: that it lacked the subjective intent to misrepresent the reasons it asked YouTube to take down the video.
     Universal appealed to the Ninth Circuit, and in court Tuesday, U.S. Circuit Judge Milan Smith said the concept of fair use is an integral part of the language of the DMCA.
     Universal’s attorney, Kelly Klaus, said there was no way that Universal could know that Lenz’s only reason for posting the video was so her mother could watch her grandchildren.
     But Smith said: “I struggle with how anyone looking at this from Universal’s perspective would doubt that little children playing and dancing around to music by the artist formerly known as Prince could view it as anything other than a fair use.”
     Klaus, with Munger, Tolles & Olson in Los Angeles, acknowledged the difficulty of analyzing fair use, but said that Prince did not want his music synchronized to videos and posted to YouTube.
     “Fair use is a particularly troublesome doctrine,” Klaus said, but with 300 hours of content being uploaded every minute, much of it containing copyrighted work, a fair use analysis would be too time consuming.
     Congress meant the notice and takedown provisions of the DMCA to act as a “rapid response mechanism” to deal with the large number of infringing works on the Internet, Klaus said.
     The three-judge panel next turned to Lenz’s lawyer, Corynne McSherry, of the Electronic Frontier Foundation.
     U.S. Circuit Judge Richard Tallman asked McSherry for help clarifying the law for copyright holders.
     McSherry said that under the DMCA, Universal needed to come to a legal conclusion about fair use before it issued a takedown notice.
     “A copyright owner needs to make a legal decision,” she said, adding that the decision can be made based on the facts presented, without additional investigation.
     McSherry said she understood that the court was concerned with creating a burden on copyright holders, but that the law provides leeway for “transformative uses” of copyrighted materials, such as Lenz’s video.
     She also suggested that technological tools could be used to identify other uses that are probably protected by a copyright.
     Judge Tallman said the court was struggling with whether the video was fair use.
     “How do we write the opinion? You’re not helping me any in terms of telling the copyright owner what it must do in order … to avoid this kind of litigation,” he said.
     McSherry replied that the Ninth Circuit may not be able to resolve questions about fair use analysis, but that copyright owners must build into their processes some way to evaluate fair use. If the mechanism is clunky, she said, Congress should revisit the statute.
     Tallman adjourned with a warning that a ruling may take a while, and that the court would “puzzle” over it.

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