20 June 2017Copyright

SCOTUS refuses to hear ‘Dancing baby’ copyright dispute

The US Supreme Court has refused to hear the ‘Dancing baby’ copyright dispute, a case centring on a video of a child dancing to Prince’s “Let’s Go Crazy” that was uploaded to YouTube.

This comes just one month after the US acting solicitor general urged the court to deny the petition for certiorari in the case.

In October last year, the court asked the government to weigh in on the long-running saga.

The Electronic Frontier Foundation (EFF) had filed a petition for a writ of certiorari in August 2016 on behalf of Stephanie Lenz, the mother of the child dancing in the video.

Universal had sent YouTube a take-down notice under the Digital Millennium Copyright Act (DMCA) and, on behalf of Lenz, the EFF sued Universal for wrongfully targeting what she thought was lawful use.

The dispute ended up at the US Court of Appeals for the Ninth Circuit, which held that copyright owners must consider whether allegedly infringing content has been used fairly before requesting it be taken down from websites.

However, the court added that as long as a copyright owner has a good-faith belief that it will prevail against a fair use claim, that is sufficient for filing a request.

Jeffrey Wall, the acting solicitor general, said: “Even if a question concerning the mental state required for DMCA liability otherwise warranted this court’s review, this case would not be an appropriate vehicle in which to consider it.”

And it seems the court agreed—yesterday, June 19, the Supreme Court refused to hear the dispute.

WIPR readers also thought the Supreme Court should deny the petition, as 80% of respondents to a survey claimed the court should refuse the case.

Do we really need to have the position even more complicated by a Supreme Court decision which will then be fastened on by commentators and players alike as underpinning any number of possibly irreconcilable positions?” one reader questioned.

Corynne McSherry, EFF legal director, said: “We are disappointed that the Supreme Court decided not to review the case.”

She added: “DMCA abuse is well-documented and all too common. Sadly, the Ninth Circuit’s ruling in this case did not go far enough to ensure that copyright holders would be held accountable if they force content to be taken down based on unreasonable charges of infringement, and we had hoped the court would remedy that.”

However, the precedent that a copyright owner must consider fair use before sending DMCA take-down notices still stands, McSherry concluded.

The US Department of Justice declined to comment.

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2 July 2018   A year after the US Supreme Court refused to hear the ‘Dancing baby’ copyright dispute, the matter has been resolved amicably.