Supreme Court Asks White House To Weigh In On Dancing Baby Fair Use Case

from the hmmm dept

The copyright case involving Stephanie Lenz and her dancing baby is one that may finally be nearing a conclusion after many, many years — but it’s not over yet. As you may recall, Lenz posted a very brief clip of her then toddler, dancing along to a few seconds of a barely audible Prince song. This was almost a decade ago.

Universal Music sent a DMCA takedown, and that kicked off a big fight over fair use, with the EFF representing Lenz and arguing that Universal Music needed to take fair use into account before issuing takedowns. The case then bounced around courts for nearly a decade with a variety of rulings, eventually getting a huge confusing mess of a ruling from the 9th Circuit last year, followed by an only marginally better mess earlier this year in an en banc decision replacing the original one.

Both EFF and Universal Music asked the Supreme Court to hear different questions about the messy 9th circuit ruling, and lots of other folks weighed in with amicus briefs, including internet companies and the RIAA (not on the same side, as you might imagine). The general consensus seemed to be that it was a long shot that the Supreme Court would bother with the case, even as it was kind of a mess, but the Supreme Court this morning kept things alive by asking the White House Solicitor General to weigh in (on page 2 of the document).


The Solicitor General is invited to file a brief in this case expressing the views of the United States.

So… now everyone gets to sit and wonder what the hell the Solicitor General is going to say. The fact that former MPAA lawyer Donald Verrilli is no longer the Solicitor General is at least mildly encouraging, since his views on copyright appeared to be positively draconian. But it’s anybody’s guess how the acting Solicitor General, Ian Gershengorn, and his staff will respond to the request. I don’t think Gershengorn has much experience with copyright issues, but prior to jumping into the Obama administration, he did work at Jenner & Block, which was where Verrilli worked as well. And others on the staff have been shown to have some wacky ideas about copyright in the past.

But, for now, we’ll have to wait and see — but it also means that the case is still alive. With any luck, it’ll be over before Lenz’s “dancing baby” graduates high school.

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Companies: eff, universal music

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Comments on “Supreme Court Asks White House To Weigh In On Dancing Baby Fair Use Case”

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Anonymous Coward says:

Universal Music, RIAA and all others fighting on the same side as you 2 ought to be ashamed of yourselves! to go to the lengths you have over this is pathetic, but then 99% of cases involving fair use are contested by you. the reason being, nothing but pure and utter greed interspersed with self-saving, shit thoughts of how you and your like are so important as to want to control everything possible, from someone humming/singing a tune to actually trying to watch a movie. the world would do well without you. you are NOT anywhere near as important to anyone else as you think you are!

Violated (profile) says:

Re: So what would a "win" look like?

They already are lawfully required to consider fair use prior issuing a DMCA takedown request, not that they always do even now.

The big question in this case is if she is entitled to any damages compensation seeing that there was no obvious monetary loss. Most people think think they should pay a fine for the trouble they caused but there is nothing obvious in the law supporting it.

Keep in mind that the Supreme Court is one key court in the USA that has the power to create new law where none has existed before. The RIAA are obviously concerned that the Supreme Court may impose fixed damages or a fine for non-commercial false take-downs. That is the one thing Internet supporters hope for to end the era of DMCA bots firing notices at any smells alike.

That One Guy (profile) says:

Re: Re: So what would a "win" look like?

They already are lawfully required to consider fair use prior issuing a DMCA takedown request, not that they always do even now.

Theoretically yes, for all intents and purposes not even close, for the reason that your very last line touched on: Bots cannot consider fair use, yet it is still considered perfectly acceptable and legal to use them to generate and file DMCA notices despite this fact.

A requirement that can be blatantly ignored is not a requirement, it’s a ‘suggestion’ at best.

Anonymous Anonymous Coward (profile) says:

Wait, what???

Some partisan (all solicitor generals are partisan as they are appointed by one party or the other) is going to present the views of the United States of America? One individual is speaking for 328 million plus people?

There isn’t even a requirement to have copyright (or patents or trademark) which would obviate the whole need for a fair use defense, it is just allowed by the constitution, not required. And some joker is going to stand up and tell the Supreme’s (not the musical group) what we, a very divers group of people, think as a whole?

Methinks the court is reaching a bit.

Violated (profile) says:

Re: Re: Wait, what???

Yes the United States abolished slavery one hundred years after most other countries did. Almost an after thought where it only happened to due to a well planned campaign

Even now though it is not quite over when modern people still work the same fields as the slaves once did. The big difference is that they need to be classed as a prisoner first.

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