EFF asks US Supreme Court to rule on ‘dancing baby’ case

Civil rights organization EFF has asked the highest US judge to consider the ‘dancing baby’ case that has been pending since 2007. The heart of the matter concerns the fair use principle, which allows the use of copyrighted material.

The long-running case was won in 2015 by the EFF and the video uploader, but the organization is not happy with the verdict and therefore wants to go to the Supreme Court. The EFF states in a blog post that although the lower court has ruled that rightholders must first investigate whether it is indeed fair use before sending a takedown request, the judge has applied the wrong standard.

As it stands, a party can judge that its rights are being infringed on the basis of a completely subjective standard, the EFF denounces. This means that rightholders can rightly send a takedown request, as long as they sincerely believe that their rights are being infringed. According to the civil rights organization, this would mean that rights holders could easily have videos and other content removed on the basis of suspicion, which would amount to censorship.

The EFF is involved in the case because the organization is assisting the woman who uploaded the famous ‘Dancing Baby’ video. This earned her a takedown request from Universal, because a snippet of the Prince song “Let’s Go Crazy” can be heard in the background. The contention of the uploader, one Ms. Lenz, and the EFF is that the background number is not infringing, as it falls under fair use in the US DMCA. The Supreme Court must now vote whether it will allow the case.

The EFF has long been battling certain aspects of the DMCA, suing the US government in July because an article of the law restricts freedom of expression with regard to lawfully obtained protected material.

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