Supreme Court Won't Hear Copyright Battle Over 'Dancing Baby'

The Supreme Court won't get involved in the 10-year-old "Dancing Baby" battle, which centers on copyright owners' attempts to police online copyright infringement.

The court's move leaves in place an appellate decision that requires copyright holders to consider fair use, if only to a limited extent, before demanding that online platforms remove material for alleged copyright infringement.

The dispute dates to 2007, when Stephanie Lenz uploaded a 29-second clip to YouTube of her toddler dancing while Prince's "Let's Go Crazy" played in the background. Copyright owner Universal Music, which hired people to scour YouTube for clips that potentially infringe copyright, demanded that Google remove the clip. The Digital Millennium Copyright Act enables copyright owners to demand that online platforms remove infringing content.

YouTube initially removed the clip, but restored the video after Lenz argued that it was protected by fair use principles.

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Lenz, represented by the digital rights group Electronic Frontier Foundation, then sued Universal over the initial takedown notice. Lenz argued that she was was entitled to damages because the Digital Millennium Copyright Act imposes liability on anyone who knowingly sends a Web site an improper takedown notice.

Universal countered that it didn't knowingly send a false takedown request, and shouldn't have to pay Lenz anything -- especially given that her clip was restored.

The 9th Circuit issued a mixed decision in the case. The judges ruled that content owners can't send takedown requests without first considering whether clips make fair use of copyrighted material. But they also ruled that copyright owners need not make the correct decision about whether a clip is protected by fair use, as long as they consider the question. Instead, owners need only form a "subjective good faith belief" that the material was infringing.

Lenz subsequently sought Supreme Court review. The EFF argued that the appellate ruling gave too much leeway to content holders. "Left undisturbed, the ruling in this case gives a free pass to the censorship of online speech, particularly fair uses," the group argued in a petition seeking a hearing at the Supreme Court. "An author could cause a hosting service to take a critical review offline, without fear of consequence, if she held the mistaken view that the reviewer's use of a quote was unlawful."

The battle between Lenz and Universal could now return to a federal district court for a trial over whether the music company had a subjective good faith belief that Lenz's clip infringed copyright.

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