Appeals Court Won't Rehear Copyright Case Over DMCA Takedowns

Appeals Court Won't Rehear Copyright Case Over DMCA Takedowns

SAN FRANCISCO — The 9th U.S. Circuit Court of Appeals on Thursday declined to rehear the so-called “dancing baby” case but made some amendments to its ruling on the Digital Millennium Copyright Act’s notice-and-takedown system.

The panel’s September ruling was the first time ever an appellate court held that “fair use” should be treated as a necessary consideration when copyright holders send takedown demands.  

Fair use permits limited use of copyrighted material without acquiring permission from the rights holders. It is one type of legal defense, called an affirmative defense, to the exclusive rights granted to the author of a creative work by copyright law.

Today’s amended appellate ruling left the original decision intact for the most part. But the new decision tossed out language on how automation might be used to evaluate fair use on a mass scale.

The 9th Circuit’s amended opinion excised several pages of its original ruling that said content owners’ fair use analysis need not be "searching or intensive” and that they could use automation through computer algorithms to help conduct the analysis.

In the September ruling, a three-judge panel of the 9th Circuit affirmed a lower court’s decision for summary judgment in an action under the DMCA alleging that Universal Music Group violated 17 U.S.C. § 512(f) by misrepresenting in a takedown notification that plaintiff Stephanie Lenz’s home video of her “dancing baby” constituted an infringing use of a portion of a Prince composition, "Let's Go Crazy."

In 2007, Universal sent a takedown notice to YouTube, claiming Lenz didn't have permission to use the song and YouTube removed her video.

Lenz later successfully petitioned YouTube to restore the 29-second video and then sued Universal, stating the company failed to properly review the home video before submitting the takedown notice.

The appeals court said in the September decision that 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.

As a result, Universal must stand trial over whether it wrongfully sent a copyright takedown notice to her.

Adult industry attorney Marc Randazza of Randazza Legal Group told XBIZ that the amended decision released today was a mixed bag.

“I like that it makes it clear that fair use is a right, not an affirmative defense,” Randazza said. “At the same time, I find it sort of lame that they still leave the burden of proof of fair use on the fair user.”  

View today's amended ruling

Related:  

Copyright © 2025 Adnet Media. All Rights Reserved. XBIZ is a trademark of Adnet Media.
Reproduction in whole or in part in any form or medium without express written permission is prohibited.

More News

BranditScan Names Subgirl Newest Brand Ambassador

BranditScan has named content creator Subgirl its newest brand ambassador.

Arcom Reports Age Verification Enforcement Actions Against 5 Adult Sites

French media regulator Arcom released a statement Tuesday detailing recent actions to enforce age verification rules as set forth under France’s Security and Regulation of the Digital Space (SREN) law.

Pineapple Support, Clips4Sale to Host Performers' Partners Support Group

Pineapple Support and Clips4Sale are hosting a free online support group for partners and family members of adult industry professionals.

FSC Mourns the Loss of Board Director Emeritus Mark Kernes

Free Speech Coalition has released a statement regarding the passing of Board Director Emeritus Mark Kernes.

Alexa Creed Launches New Paysite

Creator Alexa Creed has launched a new membership site through MyMember.site.

Choice Talent Management Launches Fan Platform 'ChoiceFilmz'

Choice Talent Management CEO Chris Crisco has launched a new fan platform called ChoiceFilmz.

Dredd to Launch Official Site

Dredd has announced his new website OfficialDreddXXX.com, launching April 20.

New Pleasure Product Review Site 'ToyChats' Launches

ToyChats.com, a pleasure product review and discussion site, has officially launched.

AEBN Reveals Jade Venus as Top Trans Star for Q1 of 2025

AEBN has named its top trans stars for the first quarter of 2025, with Jade Venus landing atop the leaderboard.

SexLikeReal Debuts 'AI Passthrough' for Livestreaming

SexLikeReal has introduced “AI Passthrough” for VR livestreaming.

Show More