Supreme Court Asks White House To Weigh In On Dancing Baby Fair Use Case

The copyright case involving Stephanie Lenz and her dancing baby is one that may finally be nearing a conclusion after many, many years -- but it's not over yet. As you may recall, Lenz posted a very brief clip of her then toddler, dancing along to a few seconds of a barely audible Prince song. This was almost a decade ago.Universal Music sent a DMCA takedown, and that kicked off a big fight over fair use, with the EFF representing Lenz and arguing that Universal Music needed to take fair use into account before issuing takedowns. The case then bounced around courts for nearly a decade with a variety of rulings, eventually getting a huge confusing mess of a ruling from the 9th Circuit last year, followed by an only marginally better mess earlier this year in an en banc decision replacing the original one.

Both EFF and Universal Music asked the Supreme Court to hear different questions about the messy 9th circuit ruling, and lots of other folks weighed in with amicus briefs, including internet companies and the RIAA (not on the same side, as you might imagine). The general consensus seemed to be that it was a long shot that the Supreme Court would bother with the case, even as it was kind of a mess, but the Supreme Court this morning kept things alive by asking the White House Solicitor General to weigh in (on page 2 of the document).

LENZ, STEPHANIE V. UNIVERSAL MUSIC CORP., ET AL.

The Solicitor General is invited to file a brief in thiscase expressing the views of the United States.

So... now everyone gets to sit and wonder what the hell the Solicitor General is going to say. The fact that former MPAA lawyer Donald Verrilli is no longer the Solicitor General is at least mildly encouraging, since his views on copyright appeared to be positively draconian. But it's anybody's guess how the acting Solicitor General, Ian Gershengorn, and his staff will respond to the request. I don't think Gershengorn has much experience with copyright issues, but prior to jumping into the Obama administration, he did work at Jenner & Block, which was where Verrilli worked as well. And others on the staff have been shown to have some wacky ideas about copyright in the past.

But, for now, we'll have to wait and see -- but it also means that the case is still alive. With any luck, it'll be over before Lenz's "dancing baby" graduates high school.

Permalink | Comments | Email This Story