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A US Court Just Ruled Copyright Holders Must Consider Fair Use Before Demanding Takedowns

The latest in the "dancing baby" lawsuit.
September 14, 2015, 9:56pm

Read: A US Judge Erased a Chinese Company from the Web Because of Copyright

In 2007, Stephanie Lenz posted a 29-second video on YouTube of her kids dancing along to Prince's "Let's Go Crazy." Soon after, YouTube received a notice from Universal Music Group demanding that the video be taken down, because it infringed on Prince's copyright under the Digital Millennium Copyright Act.

What ensued was a long, drawn-out legal battle (the baby in the video is now in fourth grade) between Universal Music Group and the Electronic Frontier Foundation, the digital rights watchdog that represented Lenz in the case. As of Monday, though, that battle finally seemed to draw to a close, with a federal appeals court ruling that copyright holders are required to "consider fair use before sending a takedown notification."

"Fair use" means that you can use someone else's copyrighted material if your work is transformative—like commentary, criticism, or scholarly work. Basically, you can't just repost someone else's original work, but you can use parts of copyrighted material to create something new. There's a four-pronged test for determining if something is fair use: A judge considers "the purpose of your use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use upon the potential market."

Since the song in question is barely even audible in Lenz's video, the court considered it "fair use." But this is about much more than a baby video: The ruling means a copyright owner can't just demand material be taken down without being able to show they've considered whether or not the material is fair use.

"Today's ruling sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech," the Electronic Frontier Foundation's legal director, Corynne McSherry, said in a press release following the ruling.

Lenz's original video—which only had about 200 views when it was originally taken down in 2007—has now been viewed over one million times, making her child the most famous dancing baby since Ally McBeal.