'Dancing Baby' May Head to Supreme Court
High court may hear mom's case against 'abusive' infringement claim by Universal
By Jenn Gidman,  Newser Staff
Posted Aug 15, 2016 1:38 PM CDT
Updated Aug 15, 2016 3:06 PM CDT

(Newser) – Of all the YouTube videos that could pose legal problems, a 30-second clip of a dancing baby seems less than likely. But almost 10 years after Stephanie Lenz posted her young son bopping to Prince's "Let's Go Crazy," her video may now appear before the Supreme Court, Consumerist reports. Per a release, the Electronic Frontier Foundation last week petitioned the high court on behalf of Lenz to overrule an appeals court decision that gives copyright holders ample leeway in forcing content offline with little to back up that takedown—a form of "censorship," the EFF says, that rights holders claim falls under the Digital Millennium Copyright Act. In Lenz's case, Universal Music Group, which owns the rights to the Prince song, informed YouTube that Lenz's 2007 video was a copyright infringement, and YouTube took the video down to avoid a lawsuit. (Consumerist explains third parties can escape liability if they respond to violations in a timely manner.)

But Lenz argued her video wasn't for commercial purposes and fell under the "fair use" umbrella, and the video was back on YouTube six weeks later. Her subsequent lawsuit via EFF claimed Universal used the DMCA in an "abusive way" to curb her free expression. The US Court of Appeals for the Ninth Circuit ruled in 2015 that Universal should've considered fair use before demanding the video be taken down, but the court also said copyright holders could use subjective criteria to decide, by their own standards, if infringement had taken place—"no matter how unreasonable that belief," per the EFF release. It's that part of the court's decision that Lenz is hoping gets overturned by the Supreme Court, with EFF Legal Director Corynne McSherry noting copyright owners who cry infringement "based on nothing more than an unreasonable hunch, or subjective criteria they simply made up must be held accountable." Consumerist has the nitty-gritty of the fair-use doctrine. (A judge backed up Apple in a recent DMCA case.)