EFF Seeks Rehearing in Takedown Notification Case

Oct 24, 2015 12:00 PM PST

SAN FRANCISCO — The 9th U.S. Circuit Court of Appeals has been asked to revisit the “dancing baby” case by the Electronic Frontier Foundation.

Last month, a 9th Circuit panel found that copyright owners must consider the fair use doctrine before sending Digital Millennium Copyright Act takedown notices to online hosts.

The panel affirmed a lower court’s decision for summary judgment in an action under the DMCA alleging that Universal Music Group's violated 17 U.S.C. § 512(f) by misrepresenting in a takedown notification that plaintiff Stephanie Lenz’s home video of her baby dancing constituted an infringing use of a portion of a Prince composition.

The appeals court last month said copyright owners like Universal can only send takedown notices if they’ve come to a good faith conclusion that the targeted upload is not a protected fair use of the copyrighted work.

Now, in an petition for rehearing made this week, the EFF on behalf of Lenz asked the court to rehear en banc to address the question: Whether Congress, in drafting the safe harbor provisions of the DMCA intended to grant private parties the practical power to censor speech based on an unreasonable belief that a copyright has been infringed, as long as that belief is (like all beliefs) subjectively held.

Lenz, who acquired pro bono counsel from the Electronic Frontier Foundation, sued Universal in 2007, arguing that the media giant’s takedown practices violated the DMCA.

The EFF in its brief submitted to the 9th Circuit this week stated that it is concerned about the court’s suggestion that copyright holders should be held to a purely subjective standard.

“In other words, senders of false infringement notices could be excused so long as they subjectively believed that the material they targeted was infringing, no matter how unreasonable that belief,” the EFF wrote. “The panel felt that this holding was required by an old 9th Circuit case called Rossi vs. MPAA. As we explain in our brief, the Rossi case involved very unusual facts — the website owner fraudulently represented that his site contained full movies for download — and its adoption of a subjective standard was both unnecessary and inconsistent with the statute.

“Ultimately, a purely subjective standard rewards sloppiness and creates a perverse incentive for copyright owners to not learn about the law before sending a takedown,” the EFF wrote. “The DMCA gives private parties an unprecedented tool for silencing online speech. By simply sending an email or filling out a web form, it is possible to remove speech on many of the sites people use every day to communicate.”

The EFF noted that Universal has also filed a petition for rehearing asking the court to find that Lenz was not injured by the removal of her video from YouTube and that the court therefore lacks jurisdiction to hear the case.

“We strongly disagree,” the EFF said.

The 9th Circuit has not yet ruled whether to grant an en banc review of the decision.

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