Prince-Dancing Baby Still Kicking in Court

SAN FRANCISCO (CN) - The Ninth Circuit sided with a mother whose dancing-baby YouTube video drew ire from Prince's label, but that hasn't stopped both the mom and Universal from now seeking a rehearing.

The case dates back to 2007 when Stephanie Lenz uploaded a video of her toddler dancing along to the muffled sound of Prince's "Let's Go Crazy." Universal ordered the video taken down for infringement under the Digital Millennium Copyright Act, and Lenz sued.

Her lawyers, who were provided by the Electronic Frontier Foundation, argued that Universal abused the DMCA, which gives meager protections to recipients of takedown notices if, under section 512(f), the sender knowingly misrepresents that the material is infringing.

The Ninth Circuit agreed last month that Universal failed to consider fair use before issuing its DMCA notice, raising a triable issue as to whether the label formed a "subjective good faith belief" that the song's use was illegal.

The decision, signed by U.S. Circuit Judge Richard Tallman and joined in full by U.S. Circuit Judge Mary Murguia, says copyright holders cannot avoid considering fair use when issuing takedown notices under the DMCA.

Tallman said the court's hands were tied, however, by Rossi v. MPAA, precedent from 2004 that requires copyright holders to have a "subjective good faith belief" that the use has infringed the copyright.

"We therefore judge Universal's actions by the subjective beliefs it formed about the video," Tallman wrote. The panel remanded the case for a jury trial in U.S. District Court in San Jose.

U.S. Circuit Judge Milan Smith partially dissented, however, saying his colleagues interpreted the "knowingly" part of section 512(f) too restrictively. "Universal urges us to construe Rossi to mean that a party must subjectively believe that the facts it asserts is false in order to be liable under section 512(f)," he wrote. "If this is indeed the meaning of Rossi, it is difficult to see how Lenz can possibly prevail."

But while EFF initially called the ruling an "important win for fair use," they now say the lead decision failed to settle the "rights and responsibilities of speakers and copyright holders."

In a petition filed October 20, the EFF and its co-counsel at Keker & Van Nest ask the Ninth Circuit to rehear the case en banc, saying the question is one of "exceptional importance."

Lenz's attorneys note that section 512(f) is largely impotent if it is not construed in a way that will actually protect users.

"Rossi and the majority here place the burden on the person whose speech was taken down to prove to a jury the subjective belief of the censor-a standard and process that will be all but impossible for most," the 19-page petition says.

Keker & Van Nest's Michael Kwun signed the petition.

"It gets worse," he wrote. "If the sender of an improper takedown cannot suffer liability under § 512(f) no matter how unreasonable its belief, Rossi effectively eliminates § 512(f) protections for even classic fair uses.

"Many copyright owners unreasonably believe that virtually all uses of copyrighted works must be licensed," Kwun continued. "Fair use exists, in significant part, to make sure such unreasonable beliefs don't thwart new creativity. In particular, it protects uses, such as parody and criticism, that copyright owners are unlikely to license. Allowing a copyright owner to hide behind unreasonable beliefs undermines this crucial protection."

Universal petitioned for a panel rehearing the same day. It claims that from the beginning Lenz lacked standing to bring her case because she never alleged any financial loss or injury.

Follow @MariaDinzeo

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