Tuesday, June 20, 2017

Supreme Court turns down EFF’s “Dancing Baby” fair use case; Ars Technica, June 19, 2017

Joe Mullin, Ars Technica, Supreme Court turns down EFF’s “Dancing Baby” fair use case

"The Supreme Court has decided not to take up the case of Lenz v. Universal, a ten-year-old copyright lawsuit initiated by the Electronic Frontier Foundation that helped determine the boundaries of "fair use."
Today's order leaves standing an earlier ruling by the US Court of Appeals for the 9th Circuit. EFF called that ruling a "strong precedent," while at the same time acknowledging it did not go far enough...
Now that the 9th Circuit precedent stands, EFF will have to decide whether or not it wants to push forward with a jury trial. The damages boundaries have already been set by earlier judicial decisions, so Lenz wouldn't be able to get more than "nominal" damages. That wouldn't be much, since her video was removed for only a couple weeks and has remained up since, garnering more than 1.9 million views.
EFF Legal Director Corynne McSherry said she's disappointed the Supreme Court didn't take the case, since DMCA abuse is "well-documented and all too common."...
At the end of the day, the Lenz case is a clear demonstration that Section 512(f) of the DMCA, which allows for lawsuits and damages against copyright owners, is unlikely to ever be a powerful tool. From a user's perspective, it's hard to imagine what could be a more clear case of fair use than the Lenz video, which features less than 40 seconds of staticky-sounding background music. If copyright owners can say they satisfied the legal requirement by saying, "We considered fair use, but didn't see it," then not much can stop them from basically blowing off 512(f). Few future plaintiffs will be able to summon the legal resources that Lenz did."

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