The Latest “Twist” for the “Dancing Baby”: It’s Broke…But Don’t Fix It!

Stephen Carlisle May 11, 2017

The latest twist in the never ending saga of the “Dancing Baby” case hit the dance floor on May 5, 2017. On that date, the U.S. Solicitor General responded to the Supreme Court of the United States’ request last October for guidance on whether it should take up the case of Lenz v. Universal Music Group. ¹ The case was subject of two Petitions for Certiorari, one from each side. Universal’s had already been denied. ² In case you are unfamiliar with the case, this blog has written about it before, and you can read up on it. ³

The brief itself is a bit of a shock. ⁴ It contends that not only did the 9^th Circuit get it wrong, but everybody got it wrong. On top of that, not only did everyone get it spectacularly wrong, but the SCOTUS should not fix it by taking up the case.

It’s broke, but don’t fix it? How did we get there?

Here is the question presented by the SCOTUS:

“A separate provision [of the Copyright Act] allows a user to recover damages from a copyright owner that ‘knowingly materially misrepresents’ in such a notification that material ‘is infringing.’ 17 U.S.C. 512(f). The question presented is as follows:

Whether a copyright owner may be held liable un-der Section 512(f) for sending a notification of claimed infringement based on a sincere but unreasonable belief that the challenged material is infringing.” ⁵

In the lower court and on appeal, the arguments surrounded what and how much a person sending a DMCA takedown should consider whether the defense of fair use is present. The 9^th Circuit held that:

“We conclude that because 17 U.S.C. § 107 created a type of non-infringing use, fair use is ‘authorized by the law’ and a copyright holder must consider the existence of fair use before sending a takedown notification under § 512(c).” ⁶

This was tempered by the following language which rolled back how searching or intensive the consideration should be:

“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.” ⁷

That’s not correct, says the Solicitor General. According to the SG, there is no “good faith” requirement in 512(f), and you can’t “read it in” or “imply it in” as the Electronic Frontier Foundation contended throughout the case.

“This case has been litigated as a dispute about the meaning of 17 U.S.C. 512(c)(3)(A)(v), which provides that a takedown notice must include a statement that the copyright owner has a ‘good faith belief’ that the challenged conduct is unauthorized. But Section 512(c)(3)(A)(v) does not define the mental state required for liability under Section 512(f ). That requirement appears in Section 512(f) itself, which states that a copyright owner is liable only if it ‘knowingly materially misrepresents under this section * * * that material or activity is infringing.’ Neither the parties nor the court below have focused on that controlling statutory text.” ⁸

So, in the mind of the SG’s office, the “good faith belief” test goes completely out the window. You can only get tagged under 512 (f) if you actually knew the material was fair use, and not infringing, or if you were willfully blind to facts that would have demonstrated the use to be a fair use. ⁹ And here’s the kicker that is sure to give the EFF heartburn:

“A negligent or unreasonable misrepresentation of infringement is not sufficient.” ¹⁰

The SG’s opinion tracks through the other portions of the Copyright Act, where the standard is less than actual knowledge:

• Knowing or having reasonable grounds to know: Section 1202(b)(3)
• Was not aware and had no reasonable grounds to know: Section 1203(c)(5)(A)

Contrasting with 512(f)’s language which is “knowingly materially misrepresents.”

It gets even worse for the Electronic Frontier Foundation.

“[The EFF] identifies no basis for construing ‘knowingly’ in Section 512(f) to mean ‘unreasonably’—a standard akin to negligence.” ¹¹

And

“[N]either the dissenting judge nor [The EFF] has identified any authority holding that a person acts ‘knowingly,’ within the meaning of a statute that uses that term, simply by engaging in reckless or negligent conduct.” ¹²

And, wait for it, because here comes the kill shot.

If the standard set forth in 512(f) is that of actual knowledge, or willful blindness, then it follows that the use which is the subject of a takedown notice must first be adjudged to be a fair use. If the use is in fact not a fair use, then there can be no actual knowledge that it is fair use. Nor can one be “willfully blind” to facts demonstrating a fair use, if the use is ultimately ruled not to be a fair use. To hold otherwise, the SG reasons, a copyright owner that fails to consider fair use before sending a takedown notice would be liable for damages, even if the use was infringing. ¹³

So, under the facts of this case, the reasoning of the SG is that the EFF must first prove that the “Dancing Baby” video is a fair use. If it does not provide that proof, then it does not matter what Universal’s reasoning or thought process was in issuing the takedown notice.

“The [9^th Circuit’s] analysis logically suggests that a copyright owner could be held liable under Section 512(f) for deliberately misrepresenting its subjective belief concerning the challenged material’s infringing character, even if the court determines that the material actually was infringing. Such a result would be inconsistent with the text of Section 512(f), because the copyright owner in that scenario could not reasonably be said to have ‘misrepresent[ed] * * * that [the] material or activity is infringing.’” ¹⁴

“The [9^th Circuit’s] analysis thus contains a significant legal error, and one that could give rise to un-warranted Section 512(f) liability in a case where the challenged material actually was infringing.” ¹⁵

So, should the SCOTUS correct this “significant legal error”? Nope. Why? ¹⁶

• Decision does not conflict with that of any other Circuit.
• Decision is interlocutory in nature. The trail Court denied both motion for summary judgement and the case never went to trial, thus no final judgement to appeal from.
• The case has been litigated by all sides under a mistaken belief of law, namely that 512(f) required a “good faith belief” rather than “knowing material misrepresentation.”
• Neither party addresses the “controlling statutory language” in their filings before the SCOTUS.

In sum, “everybody got it wrong, so go back and start over again.” I guess this proves the old adage that “If everybody’s thinking the same thing, then nobody’s thinking.”

This must be a fairly bitter pill for a “copyright denier” like the EFF to swallow. It appears that they have spent over 10 years litigating a completely erroneous view of the law, blinded by their primary goal of making things as difficult as possible for copyright owners everywhere.

But, what happens next? The SG’s opinion, as startling as it is, is just that, an opinion. It is not a final decision of a Court, nor does it have any binding force on anyone involved. But, if the SCOTUS declines to hear the case, there’s no doubt that it goes back to the District Court in California, and everyone starts all over again.

Except for the “dancing baby” portrayed in the video. He starts middle school.

It is rather sobering to consider the possibility with all the legal brainpower on display, considering not only on the attorney’s side of both parties but on the judge’s side as well, that it appears that everyone got the law completely wrong. And now, Universal has been gift wrapped an entirely new defense that no one saw coming, a truly unforeseen “twist” in this long running case.

But can the “dancing baby” learn how to do “the twist”? It will be a lot of fun to watch.

And if you’re of a certain age, you’re singing it in your head right now.