• by Wendy Davis , Staff Writer @wendyndavis, July 8, 2015

In 2007, Stephanie Lenz posted to YouTube a 29-second clip of a toddler dancing while Prince's “Let's Go Crazy” played in the background. Lenz, a Pennsylvania resident, later said she uploaded the clip in order to share it with her mother in California.

The music company Universal, which hires people to scour YouTube for clips that potentially infringe copyright, sent Google a takedown notice.

Lenz then asked Google to restore the clip on the grounds that it was protected by fair use principles. Google eventually agreed, and put back the short video.

Ever since, Lenz and Universal have been battling in court about whether Universal's request was justified.

Lenz and her attorneys at the Electronic Frontier Foundation say that Universal should never have sent the takedown notice, and that she's now entitled to damages. That's because the Digital Millennium Copyright Act imposes liability on anyone who knowingly sends a Web site an improper takedown notice.

But Universal says it didn't knowingly send a false takedown request, and shouldn't have to pay Lenz anything -- especially when her clip was restored relatively quickly.

This week, Universal lawyer Kelly Klaus argued to a panel of judges on the 9th Circuit Court of Appeals that the company need not consider the complicated legal question of fair use before sending a takedown notice.

“As Your Honors know from your own experience ... cases of fair use divide individual courts, they've divided the Supreme Court.”

Klaus added that copyright owners often can't determine fair use without more information -- including knowledge about the uploaders' motives.

Even in this case, Klaus argued, it's not clear that Lenz had the fair use right to post the clip. “If this was litigated, this would be a challenging case, I believe, for both sides,” he told the judges after sparring with them for around 30 minutes.

Klaus spent much of his allotted time arguing that obligating copyright owners to make complex legal decisions about fair use would delay the takedown process. He argued that there was no reason to do so when uploaders could simply request that the clip be restored.

But Electronic Frontier Foundation attorney Corynne McSherry told the judges that the process of restoring a clip isn't always easy.

“For the layperson, the counter-notice procedure can be quite intimidating,” she said.

She argued that content owners need to make reasonable determinations about fair use before sending takedown notices.

At least one Circuit judge -- Richard Tallman -- suggested that he wasn't eager to impose that obligation on copyright holders. “What you are asking for here is a clarification, or an interpretation of the law, that will make it more onerous on the copyright owners to get these takedowns accomplished,” he told McSherry.