The Electronic Frontier Foundation has lost a Supreme Court bid to lower the standard for proving that the removal of content from YouTube and other platforms was unreasonable.
The Supreme Court led stand Monday a U.S. Court of Appeals for the Ninth Circuit decision that said issuers of takedown notices aren’t liable under the Digital Millennium Copyright Act unless they actually knew that the material did not infringe their copyright, or were willfully blind to that knowledge.
EFF and outside counsel at Keker & Van Nest had argued that the Ninth Circuit decision “gives a free pass to the censorship of online speech, particularly fair uses.” They asked that the court take Lenz v. Universal Music to “determine, once and for all, whether or not the DMCA includes meaningful protections for online fair uses.”
The case dates to 2007, when Universal Music Corp. instructed YouTube to take down Stephanie Lenz’s 29-second video of her kids dancing to Prince’s “Let’s Go Crazy.” Universal said the “dancing baby” video, as it’s become known, infringed Prince’s copyright.
Lenz sued on the ground that the video was a fair use of the recording, while Universal argued that fair use should not even be considered in a DMCA takedown case. The Ninth Circuit ruled in 2015 that Universal and other copyright holders must consider fair use. But the court also ruled that the copyright holder’s own subjective belief that a use isn’t fair meets the standard.
Both sides petitioned for certiorari. Universal argued that Lenz never had any concrete damages that gave rise to standing. The Supreme Court denied cert in Universal’s case last fall.
EFF got amicus curiae support from Google, Twitter, Tumblr and Public Knowledge, among others. But the solicitor general’s office weighed in for Universal, saying the Ninth Circuit got it right and no other appellate circuit has held differently.
EFF Legal Director Corynne McSherry said the organization was disappointed with the decision. But she said the Ninth Circuit did get the fair use portions of the decision right “and those parts stand.” She said she has not had time yet to consult with Lenz as to whether they would now seek a trial in San Jose federal court.