How a Dancing Baby Video Just Made It Harder To Remove YouTube Content

A panel of federal judges said copyright holders have to consider fair use before issuing takedown requests.


Record labels and other copyright holders may find it more difficult to remove content from sites such as YouTube, thanks to a federal appeals court and a dancing baby.

Copyright holders who want infringing content taken down from the Internet—a request to remove a bootleg video from YouTube, for example—must consider whether the content is protected under fair-use rules, the 9th U.S. Circuit Court of Appeals ruled Monday.

The decision is likely to make it more difficult for large copyright holders such as record labels to issue a large volume of takedown requests without considering aspects of the content they want removed that render it protected under copyright law.

The case decided Monday was brought by a woman who in 2007 recorded and posted a video of her young son dancing to "Let's Go Crazy," a song by Prince, only to find the 29-second video removed from YouTube in response to a copyright claim from Universal Music Group. The woman, Stephanie Lenz, objected to the removal of her video, and had it restored.

Lenz then sued the music company for an unlawful takedown request, with the help of the the Electronic Frontier Foundation, a civil-liberties advocacy organization.

A panel of three federal judges unanimously upheld a district court's ruling that copyright holders have to consider fair use before issuing a takedown request—and that Universal could be held liable for damages under copyright law if a jury found that the company sent the request without considering fair use.

“Today’s ruling sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech,” said EFF Legal Director Corynne McSherry in a statement. “We’re pleased that the court recognized that ignoring fair-use rights makes content holders liable for damages.”

But the judges decided that since Lenz was unable to show that Universal knew but willfully ignored the fact that her video constituted fair use—or that it went out of its way to avoid discovering that fact—they themselves would not issue a judgement holding Universal liable.

This means the decision was not an unqualified win for advocates of less restrictive copyright use. "While we had hoped that the case could have provided a much clearer path for attacking bogus takedown notices, the decision still means that fair use cannot be ignored, and that the takedown process is not meant to be a one-sided affair," said Sherwin Siy, vice president of legal affairs at Public Knowledge, an open-Internet advocacy group.

Universal relied on provisions of the Digital Millennium Copyright Act to ask YouTube to remove the video, taking advantage of a law that allows platforms like YouTube to avoid liability for copyright infringement as long as they respond to requests for takedowns. But the copyright law's exceptions for fair use—which include commentary, criticism, parody, and educational uses, among others—allowed Lenz to reinstate the clip she posted.

YouTube, like other online platforms, uses an automated system to deal with the large volume of copyright-related requests it receives, matching copyrighted video and audio fingerprints with user-uploaded content to find videos that clearly infringe copyright.

The panel of judges wrote that the use of algorithms "appears to be a valid and good faith middle ground for processing a plethora of content while still meeting the DMCA’s requirements to somehow consider fair use."

But using automated systems does not free copyright holders from the burden of considering in good faith fair use before asking a platform to take down a video, the judges said.