US Supreme Court wants government’s take on copyright takedown case

The U.S. Supreme Court wants to hear more about the legal issues underpinning a dispute over a takedown notice sent to a mother who posted a 29-second video clip on YouTube of her toddler dancing to Prince's 1984 hit, "Let's Go Crazy."

The high court hasn't yet granted review of the nearly decade-old dispute between Stephanie Lenz and Universal Music, but on Monday in a strong sign that the justices are at least entertaining the possibility, they invited the U.S. Solicitor General to express the government's viewpoint about this case.

Lenz, represented by the Electronic Frontier Foundation, made a misrepresentation of their copyright under the Digital Millennium Copyright Act and asserts that Universal Music should have considered copyright fair use before telling YouTube that the background music in the cute baby video was a violation of the music giant's rights. After a long build-up at the California district court, the dispute was tackled in 2015 by the 9th Circuit Court of Appeals.

There, both sides got a mixed outcome.

For Lenz, the appeals court agreed that copyright owners must consider fair use before sending takedown notices.

Copyright owners, though, got more welcome news from the portion of the opinion, stating, "If, however, a copyright holder forms a subjective good faith belief the allegedly infringing material does not constitute fair use, we are in no position to dispute the copyright holder's belief even if we would have reached the opposite conclusion."

Both sides wanted high court review. The justices considered at a conference on Friday. Today, amid dozens of rejected cert applications, comes word of what happened.

The Supreme Court rejected Universal Music's wish to examine the standing issues. The music company hoped to foreclose the possibility that a plaintiff, like Lenz, who alleges a statutory violation but no concrete or particularized injury could sue.

But the high court wants more input on Lenz' own cert application, which deals with the issue of how copyright owners come to determinations before sending out takedown notices. Can copyright owners simply get away with drawing upon their subjective conclusions of fair use or do they have to make a more rigorous examination of the objective criteria when dealing with the four factors that govern fair use? The Supreme Court tackles a very small percentage of cases appealed there, but those where the Solicitor General offers an opinion, are accepted for review more often.

Here's the official issue presented to the Supreme Court in Lenz v. Universal Music Corp.:

"Whether the Ninth Circuit erred in concluding that the affirmation of good faith belief that a given use of material use is not authorized "by the copyright owner, its agent, or the law," required under Section 512(c) of the Digital Millennium Copyright Act ("DMCA"), may be purely subjective and, therefore, that an unreasonable belief – such as a belief formed without consideration of the statutory fair use factors – will not subject the sender of a takedown notice to liability under Section 512(f) of the DMCA."

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