9th Circuit's 'Dancing Baby' Case Ruling 'Too Idiosyncratic' for SCOTUS Review, AEI Fellow Says
Lenz v. Universal -- popularly known as the “dancing baby” case -- is “too idiosyncratic” to “produce a broadly useful” Supreme Court decision on the fair use doctrine, said Tom Sydnor of the American Enterprise Institute's Center for Internet, Communications…
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and Technology in a Friday blog post. The court is considering whether to grant twin petitions for review of the 9th U.S. Circuit Court of Appeals’ ruling in Lenz. The 9th Circuit ruled in 2015 that the Digital Millennium Copyright Act (DMCA) “requires copyright holders to consider fair use before sending a takedown notification” (see 1509140070). The Electronic Frontier Foundation and Universal Music Group separately petitioned the high court for a writ of certiorari to review the 9th Circuit’s ruling. The top court is awaiting an opinion from the U.S. Solicitor General's office (see 1611010024). Sydnor said a broad Supreme Court decision on fair use needs to decide whether the 2nd Circuit correctly decided the DMCA’s Section 512 safe harbors protect online service providers from civil copyright infringement lawsuits “that could still be punished as criminal racketeering enterprises under existing law.” The Supreme Court would also need to consider whether it’s “time to retract the judge-made ‘transformative-use’ component of statutory fair-use analysis that has become so confusing that the federal judge who created it has claimed that ‘transformative’ uses of works are those in which works are not ‘transformed,’” Sydnor wrote: Lenz “doesn’t raise either of those issues clearly enough to seem worthy of Supreme Court review.” The case involves a mother who uploaded to YouTube a video of her toddler dancing to a snippet of Prince's song "Let's Go Crazy."