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).
LENZ, STEPHANIE V. UNIVERSAL MUSIC CORP., ET AL.

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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  • identicon
    Anonymous Coward, 31 Oct 2016 @ 10:52am

    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!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Oct 2016 @ 10:52am

    So what would a "win" look like?

    Assuming Lenz wins; what affect would that really have? Do we really think record labels or anyone else would consider fair use? What would be the penalty if they didn't? While a win would be a moral victory, that is probably all it would be.

    reply to this | link to this | view in chronology ]

    • icon
      David Good (profile), 31 Oct 2016 @ 11:25am

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

      It's about precedent, not the importance of one case. If the owner of the video wins, it will be harder for the MPAA to argue against fair use in future, or other cases.

      reply to this | link to this | view in chronology ]

    • icon
      Violated (profile), 1 Nov 2016 @ 5:44am

      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.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 1 Nov 2016 @ 7:40am

        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.

        reply to this | link to this | view in chronology ]

  • identicon
    Quiet Lurcker, 31 Oct 2016 @ 11:04am

    Simple Question

    Why is the Supreme Court asking the white house to weigh in on the subject?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Oct 2016 @ 11:09am

      Re: Simple Question

      SCOTUS is corrupt, they have already bent knee to the Executive branch and its DoJ thugs more than once.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Oct 2016 @ 11:15am

      Re: Simple Question

      Better question: Why does Mike think the Solicitor General is the White House?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 31 Oct 2016 @ 11:40am

        Re: Re: Simple Question

        From Wikipedia:
        The United States Solicitor General is the person appointed to represent the federal government of the United States before the Supreme Court of the United States.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 31 Oct 2016 @ 1:16pm

        Re: Re: Simple Question

        > Better question: Why does Mike think the Solicitor General is the White House?

        Even better question: Considering that the Solicitor General is part of the executive branch, why do you seem to think the top executive is based in the White House?

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Oct 2016 @ 1:18pm

      Re: Simple Question

      > Why is the Supreme Court asking the white house to weigh in on the subject?

      Checking the political correctness winds.

      reply to this | link to this | view in chronology ]

    • icon
      Violated (profile), 1 Nov 2016 @ 5:54am

      Re: Simple Question

      Because the Supreme Court has plans and wants to see if the Whitehouse would object. It is no good to them making a major precedent if the Whitehouse condemns the ruling and seeks to change the law in Congress.

      Changing the fundamentals of copyright enforcement is a big matter meaning they desire political backup.

      reply to this | link to this | view in chronology ]

  • icon
    Anonymous Anonymous Coward (profile), 31 Oct 2016 @ 11:05am

    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.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Oct 2016 @ 11:14am

      Re: Wait, what???

      Especially since copyright is the purview of congress.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 31 Oct 2016 @ 12:43pm

        Re: Re: Wait, what???

        don't get your panties in a wad...

        Congress has largely abdicated their responsibilities. The Executive branch and the courts are doing a fucking fantastic job in their stead!

        reply to this | link to this | view in chronology ]

    • identicon
      Zibal, 31 Oct 2016 @ 1:39pm

      Re: Wait, what???

      > it is just allowed by the constitution, not required.

      Kind of like the original status of slavery in the US. Slavery was finally abolished. The same thing needs to happen to copyright.

      reply to this | link to this | view in chronology ]

      • identicon
        Thad, 31 Oct 2016 @ 3:33pm

        Re: Re: Wait, what???

        The thing about comparing something to slavery is that whatever point you're making kinda gets buried beneath your completely tasteless and hyperbolic choice of analogies.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 31 Oct 2016 @ 9:28pm

          Re: Re: Re: Wait, what???

          Sorry if you don't like to be reminded of history. Just because the constitution originally allowed something doesn't make it right, be it slavery, disenfranchisement of women or copyright. But go ahead and love copyright all you want, it still needs to be abolished.

          reply to this | link to this | view in chronology ]

      • icon
        Violated (profile), 1 Nov 2016 @ 6:11am

        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.

        reply to this | link to this | view in chronology ]

        • icon
          Dr. Ramon (profile), 5 Nov 2016 @ 8:45pm

          Re: Re: Re: Wait, what???

          Yes, the US abolished slavery, but it was a fight. The original Republicans were anti-slavery and the original Democrats were pro-slavery. Historical fact. But now it appears that Republicans and Democrats are only separated in name alone.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Oct 2016 @ 12:08pm

    The Chinese did it first, and your lawyers will be answering to them in an East Texas courthouse.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Oct 2016 @ 1:36pm

    No Hurry

    Now that Prince is dead, that baby has a decent chance of being alive long enough to release the video after Prince's songs go out of copyright.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Oct 2016 @ 1:39pm

      Re: No Hurry

      Only if Disney fails in it attempts to keep Micky Mouse under Copyright..

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Oct 2016 @ 1:43pm

      Re: No Hurry

      > Now that Prince is dead, that baby has a decent chance of being alive long enough to release the video after Prince's songs go out of copyright.

      Nah. If copyright is allowed to continue, they'll retroactively extend it long before then.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Oct 2016 @ 3:14pm

    Unbelievable... Yeah, when I want to hear Let's Go Crazy, I fire up that video and gyp Universal out of tons-o-money.

    Geez, Hollywood is evil.

    reply to this | link to this | view in chronology ]

  • icon
    Karl (profile), 1 Nov 2016 @ 10:03pm

    Jenner & Block

    FYI, if the name Jenner & Block sounds familiar to you, that is because they are the legal firm that was hired by the MPAA to write CIDs for Jim Hood.

    Yes, the same CID's that Judge Wingate ruled unconstitutional (PDF).

    reply to this | link to this | view in chronology ]


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