US judge orders trial in dancing baby case

Stephanie Lenz posted the 29-second clip of her son dancing to the song Let's Go Crazy by Prince &The Revolution to YouTube in 2007. YouTube removed the recording after Universal Music issued a Digital Millennium Copyright Act (DMCA) notice, claiming Lenz violated its copyright on the song.

Lenz, with help from public interest organisation the Electronic Frontier Foundation (EFF), later sued Universal under DMCA section 512(f) for failing to consider fair use.

Last week, US District Judge Jeremy Fogel rejected arguments from both sides for summary judgment, ruling that a trial is needed to resolve disputed facts in the case.

Among other things, the court will consider whether Universal’s actions meet the high standard of subjective faith. Lenz argues that Universal’s screening process was so deficient that it demonstrated wilful blindness to whether the video fell under fair use exemptions.

Universal argues that the DMCA should not apply in this case, despite having sent the takedown notice pursuant to the DMCA. The company claims it only used DMCA procedures because YouTube's terms of service required as much to remove videos. 

Universal also argues that YouTube is ineligible for the safe harbour provision of the DMCA because hosting videos does not constitute “storage at the discretion of the user” as defined in Section 512.

The case, Lenz v Universal, is being tried in the US District Court for the Northern District of California, San Jose. Universal is being represented by Kelly Klaus of Munger Tolles & Olson; Lenz is being represented by Cindy Cohn of EFF and Ashok Ramani of Keker & Van Nest.