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How A Dancing Baby Video Helped Save The Online Right To Fair Use

Published in partnership with MintPress News.

SAN FRANCISCO — Free speech activists are hailing a recent court decision about a dancing baby video which they say protects Internet fair use, a critical free speech right, from corporate repression.

The 29-second video, published in 2007 by Stephanie Lenz, shows her 13-month-old son, Holden, dancing in a kitchen. Prince’s 1984 hit song “Let’s Go Crazy” is playing on the radio in the background, and Universal Music Group, the song’s copyright owner, claimed the video violated the Digital Millennium Copyright Act and had it temporarily removed from YouTube.

The Digital Millennium Copyright Act of 1996 was designed to protect copyright holders from online violations of free speech by offering a simple path to have offending content removed from the Internet. However, the DMCA was written so that it allows for “fair use” rights, a part of copyright law that protects scholars, parody, online search engines, and others who make limited use of a portion of a larger copyrighted material, like Lenz.

Soon after Lenz received the takedown motion from Universal Music Group, she followed the standard DMCA procedure for filing a counterclaim, successfully asserting her fair use rights. YouTube reinstated the video, but this wasn’t enough.

“[C]oncerned that corporate copyright holders were routinely abusing the takedown provision of the DMCA, potentially chilling free speech online, the Electronic Frontier Foundation sued Universal for damages on Lenz’s behalf,” Andrew Albanese wrote last week for Publisher’s Weekly.

Albanese noted that the Sept. 14 decision by the U.S. Court of Appeals for the 9th Circuit doesn’t resolve Lenz’s legal case. It simply means that after a years-long courtroom struggle, her case can actually proceed to trial, allowing her to seek damages from Universal Music Group.

But legal experts were unequivocal in their analysis that the decision has important ramifications for copyright and Internet free speech.

“Today’s ruling sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech,” said EFF Legal Director Corynne McSherry. “We’re pleased that the court recognized that ignoring fair use rights makes content holders liable for damages.”

A key factor in the decision was the automated nature of the DMCA takedown.

“Currently, big rights-holders like Universal and the RIAA [Recording Industry Association of America] use algorithms to generate DMCA takedowns — basically, they have computers trawling YouTube and Google, looking for video clips that violate their intellectual property, and send DMCA notices to whoever’s hosting the video,” Chris Mills reported at Gizmodo.

Universal unsuccessfully argued that fair use was “affirmative” — in other words, that the company could send out thousands of DMCA notices and then require people like Lenz to affirm the legality of their use by filing an appeal.

Instead, the federal judges reinforced that fair use is a right that copyright holders must consider carefully, even if that just means smarter algorithms:

Copyright holders cannot shirk their duty to consider, in good faith, prior to sending a takedown notice, whether allegedly infringing material constitutes a fair use, a use which the DMCA plainly contemplates. That this step imposes responsibility on copyright holders is not a reason for us to reject it.

Corynne McSherry emphasized that, because fair use protects use of copyrighted material for analysis, it’s especially important during election season when candidates might seek to remove unflattering footage from the Internet.

“We will all watch a lot of online video and analysis of presidential candidates in the months to come, and this ruling will help make sure that information remains uncensored,” he said.

In honor of their recent victory, Lenz tweeted a glimpse of what Holden looks like now, 8 years after he first gained unexpected notoriety for his dancing skills:

Kit OConnell

Kit OConnell

Kit O’Connell is a gonzo journalist and radical troublemaker from Austin, Texas. He is the Associate Editor and Community Manager of Shadowproof. Kit's investigative journalism has appeared in Truthout, MintPress News and