Internet Lawyer Blog
In continuing our comments regarding copyrights online, we are on to fair use and liability for litigation. A dancing baby has created one of the most obscure and interesting cases for the year. The ramifications of this lawsuit could further impact the way that some copyright disputes could play out, bringing in a potential new factor for any takedown or claims of infringement. Yet, how this ultimately will work out is up to the justices who currently compose the highest court of the land (i.e., United States Supreme Court). What is the story of the “Dancing Baby” case? How might copyright infringement cases change? How could the court decide? Does this interact with the earlier Kirtsaeng ruling, if at all?
What is happening with the case now?
To recap, Lenz v. Universal focuses on whether there is a good faith requirement for takedowns. Lenz had uploaded a video on YouTube showing her toddler dancing to the song “Let’s Go Crazy” by Prince. It also included a snippet of the song in poor quality. Sometime after, Universal issued a takedown of the video. However, in its analysis, the Ninth Circuit first decided that there was a good faith requirement, and questioned if Lenz would be owed damages. So far, the United States Supreme Court has denied a request for certiorari by the petitioner over what, if any, damages could be requested by Lenz. The case has also garnered the attention of various organizations, such as the Electronic Frontier Foundation and Yes Men to curtail incorrect takedowns.
What are the ramifications of considering fair use?
The good faith requirement is something that would ultimately serve to stymie litigation, especially if it further implicates the use of “fair use” as a sword rather than a shield. The way that Lenz invoked fair use has been a novel and unprecedented approach. If the court deems that the ability to use fair use as a sword, then it could allow others to push for it as a prerequisite to any copyright infringement claim. The fair use exception could then lead the way to lawsuits that leave companies that rely on takedowns, or the use of other companies to monitor the internet for copyright infringement.
However, of equal note is how this would serve under the Kirtsaeng II ruling. Given the Supreme Court’s denial of Universal’s certiorari request, Kirtsaeng II seems to answer some of the questions in part. Although, there it applied the attorney’s fees provision of the Copyright Act to the infringement of copyrights, and not to a case as in Lenz, which alleged Universal violated the statute in a way that caused harm towards her.
Ultimately, this case is about damages, and while it has been denied certiorari by the high court, it’s a valid question that should be considered, especially since there is currently no hearing set. That would likely resolve much of the issues involved, though there is still a likelihood that it could play out much like Kirtsaeng II and be saved for a separate ruling.
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