After five years, "dancing baby" YouTube takedown lawsuit nears a climax

by Joe Mullin

SAN JOSE, California—It's been five years since Stephanie Lenz, angry that a video of her son dancing to a Prince song was taken down from YouTube, reached out to the lawyers at the Electronic Frontier Foundation. Ultimately, Lenz worked with EFF lawyers to sue Universal Music, the company that initiated the takedown.

Arguing against the takedown of a 29-second home video portraying a toddler dancing might have been a slam dunk from a PR perspective; legally speaking, it's been anything but. EFF was looking for a case that was so obviously an example of "fair use" that the content owner who initiated the takedown could actually be forced to pay damages, under a little-used section of the Digital Millennium Copyright Act, section 512(f). But the bar is very high to get that type of relief. That became crystal clear at the most important hearing in the case thus far, held today in San Jose.

Both sides have filed extensive motions saying all the facts point to a win for their side. US District Judge Jeremy Fogel, who is overseeing the case, said at the hearing that he isn't inclined to find for either side without a jury trial. After years of discovery, and several depositions of key Universal employees involved in the takedown, Fogel said that it isn't clear that EFF has met the high burden of showing that Universal exhibited "subjective bad faith."

EFF would have to show that there's no way the video was not fair use, first of all. In addition, EFF lawyers would have to show "there was some concerted activity on Universal's part to blind itself to that fact—that even knowing they had nothing to stand on with regards to fair use, they put out a takedown." Even if EFF could show that Universal Music acted recklessly or with negligence—that wouldn't be enough.

He hardly seemed ready to rule in Universal's favor, either. "A reasonable fact-finder could conclude, that this is an action taken in subjective bad faith," he said.

Having laid that out, he still listened to arguments on both sides. Corynne McSherry, arguing for EFF, said that Universal should be found liable because it really had no process in place that could have conceivably led to a finding of 'fair use.'

"Sean Johnson [the Universal employee who initiated the takedown] wasn't equipped—he had no idea what to look for. Whether it was Ms. Lenz's fair use, or anybody else's."

Kelly Klaus of Munger, Tolles & Olson argued for Universal. After years of discovery, Klaus argued, EFF can't show that anyone at Universal thought the takedown was illegitimate. "There is no evidence whatsoever in this record that Universal knew it was making a misrepresentation," said Klaus. "Their [EFF's] position is that every takedown notice done without someone doing a full [fair use] review is in violation of 512(f)." And that's just not practical, he said. Universal employees who were hunting for Prince songs on YouTube found thousands of posts, and many of them went back up as soon as they were taken down. "They were playing a game of whack-a-mole."

The amount of damages EFF is fighting for is tiny in the grand scheme of things. Judge Fogel has already limited the amount it can ask for. EFF is asking for compensation for 10 hours of Lenz's time, spent dealing with the takedown notice before she contacted EFF, based on the Pennsylvania minimum wage at the time of $6.25 per hour. It's also asking for $1,275 for the time that EFF attorneys spent advising her pre-suit.

Despite the fact that not much money can be won, in an interview with Ars, McSherry said that the principle the EFF is fighting for is still important.

"You have to have a process in place that will cause content owners to hesitate in the first place," said McSherry. That's more important than ever around election time. "Imagine if I put up a political video, and some content owner—based on a completely specious allegation of copyright infringement—took it down. Even if I counter-notice immediately, it will be taken down for two weeks."

At the end of the day, almost no users will be able to harness the resources that Stephanie Lenz has in an effort to fight back against a questionable copyright takedown, and so it's hard to see what effect this will have on protecting fair use rights more broadly. After five years, it isn't clear whether the fight to even win compensation for Lenz herself will bear fruit; it's harder yet to imagine anyone is eager to follow in her footsteps, or to believe it will lead to a sea change in the behavior of content owners.

Overall, there just isn't much strength in the part of the DMCA that prevents abusive takedowns. EFF's most strident attempt to put some teeth into that law has been a long slog, still without a clear outcome.