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

UPDATED: Supreme Court Rules Against Adult Industry in Pivotal Texas AV Case

The U.S. Supreme Court on Friday issued its decision in Free Speech Coalition v. Paxton, striking a blow against the online adult industry by ruling in support of Texas’ controversial age verification law, HB 1181.

North Carolina Passes Extreme Bill Targeting Adult Sites

The North Carolina state legislature this week ratified a bill that would impose new regulations that industry observers have warned could push adult websites and platforms to ban most adult creators and content.

Supreme Court Ruling Due Friday in FSC v. Paxton AV Case

The U.S. Supreme Court will rule on Friday in Free Speech Coalition v. Paxton, the adult industry trade association's challenge to Texas’ controversial age verification law, HB 1181.

Ofcom: More Porn Providers Commit to Age Assurance Measures

A number of adult content providers operating in the U.K. have confirmed that they plan to introduce age checks in compliance with the Online Safety Act by the July 25 deadline, according to U.K. media regulator Ofcom.

Aylo Says It Will Comply With UK Age Assurance Requirements

Tech and media company Aylo, which owns various adult properties including Pornhub, YouPorn and Redtube, plans to introduce age assurance methods in the United Kingdom that satisfy government rules under the Online Safety Act, the company has announced.

Kyrgyzstan Parliament Approves Measure Outlawing Internet Porn

The Supreme Council of Kyrgyzstan on Wednesday passed legislation outlawing online adult content in the country.

Trial Set for Lawsuit by U Wisconsin Professor Fired Over Adult Content

A trial date of June 22, 2026, has been set for the civil lawsuit filed by veteran communications professor Joe Gow against the University of Wisconsin board of regents, which fired him for creating and appearing in adult content.

New UK Task Force Meets to Target Adult Content

The architect of an influential report that recommended banning adult content deemed “degrading, violent and misogynistic” has convened an “Independent Pornography Review task force” aimed at translating that report’s findings into action in the U.K.

11:11 Creations Launches Affiliate Program

11:11 Creations principal Alicia Silver has launched 11:11 Cash for creators and affiliates.

Pineapple Support, Pornhub to Host 'Self Love' Support Group

Pineapple Support and Pornhub are hosting a free online support group for performers to develop self-love.

Show More