The Ninth Circuit issued its decision last month, ruling that rights-holders are required to consider fair use before sending a DMCA, or takedown notice—in other words, that it would have been illegal for Universal send a takedown over the dancing baby video if it didn't first think about whether or not it was fair use.
Fair use is a legal doctrine under which a use that might otherwise be infringing is not actually a copyright violation. For example, a quote from a book in an academic article is a fair use, a video of a police shooting played on the news is a fair use, and a video remixing Twilight with Buffy the Vampire Slayer is also fair use.
But for all intents and purposes, they didn't rule in favor of Stephanie Lenz, the mother of the dancing baby, who is represented pro bono by the EFF. In September, in the wake of the decision, I wrote that "the Ninth Circuit is saying, 'You have to look at fair use before sending a DMCA notice,' but it's also saying, 'Well, you don't have to look that hard.'" The Ninth Circuit decision meant that the case would go back to the district court for a trial, rather than summary judgment for Lenz.
In 2007, Stephanie Lenz posted a 29 second video of her children to YouTube. In the clip, her toddler Holden Lenz is pushing a toy stroller and bouncing around as Prince's "Let's Go Crazy" plays on the radio in the background. The song is barely recognizable—for most, it can only be identified through the video's name: "Let's Go Crazy #1."
Universal got the video taken down from YouTube. Lenz tried to get it back up on her own, but failed. The video was only restored after EFF attorneys intervened. Some months later, they took on her case against Universal, suing them for misrepresentations under the DMCA. After several years of litigation, a district court in San Jose ruled that neither Lenz nor Universal would get summary judgment, and the case would have to proceed to trial. Both sides appealed to the Ninth Circuit, which finally ruled on the case in September of this year.
When the decision came out, the EFF called it "an important win for fair use," but both the EFF (which is representing the plaintiff, Stephanie Lenz) and Universal Music Corp. have requested an en banc rehearing from the Ninth Circuit. A normal appeal to the Ninth Circuit involves a panel of three judges. An en banc hearing in the Ninth Circuit involves assembling a panel of eleven judges from across the entire Circuit, which has a total of twenty-nine circuit judges. While a request for a rehearing is not exactly an appeal, it can result in a court overturning its own appellate decision.
The Ninth Circuit decision claimed that Rossi v. MPAA set a precedent that that applies a subjective standard to DMCA misrepresentations—meaning that rights-holders are only required to have a "subjective good faith belief" that a use is infringing. Something closer to an objective standard or reasonable person standard would obviously benefit someone like Lenz. From the point of view of a reasonable person, a 29-second video where you can hardly hear the music is not an infringing use. It's an absurd case, which is why the EFF took up the case in the first place—the facts make it a promising precedent-setter.
Lenz had—maybe, still has—the potential to breathe new life in section 512(f), which allows the targets of illegitimate takedowns to sue the people who sent the invalid notices. It's the only real counterbalance to the takedown regime, and at the moment, many experts consider the section to be "dead." Without sufficient viability for 512(f) claims, there are little-to-no consequences for rights-holders (or fake rights-holders) when they send bad DMCA notices, even when those notices might squelch journalism or political speech.
The EFF petition for a rehearing argues that Rossi was wrongly decided, and that Rossi's interpretation of the words "good faith" as used in the DMCA was not only incorrect, but that it "impacts a huge range of online speech." The petition states as both Rossi and Lenz currently stand, "as a practical matter, [the DMCA] provides almost no protection for users."
The Universal petition claims that Lenz had no standing for an appeal in the first place because she was not injured by the takedown. It also asks the court—if it chooses to rehear the case—to clarify some of the language in the opinion.
The Ninth Circuit may take weeks or even months to respond to the requests for rehearing.