Shapiro Arato Files Amicus Brief in Supreme Court Copyright Case

On September 15, 2016, Shapiro Arato LLP filed an amicus brief on behalf of the Recording Industry Association of America (“RIAA”) in the Supreme Court of the United States in the long-standing “dancing baby” case. In that case, a video depicting a child dancing to a copyrighted song was removed from YouTube for alleged infringement. The Digital Millennium Copyright Act (“DMCA”) permits copyright owners to send takedown notices to internet service providers asking that they remove allegedly infringing material from their sites. In 2015, the United States Court of Appeals for the Ninth Circuit concluded that a copyright owner who sends a takedown notice under the DMCA must first evaluate whether a given use of copyrighted material is permitted under the affirmative defense of fair use. Defendants Universal Music Corp., Universal Music Publishing, Inc. and Universal Music Publishing Group have filed a petition for a writ of certiorari asking the Supreme Court to review the Ninth Circuit’s decision, arguing that because the plaintiff suffered no actual injury from the temporary removal of her video from YouTube, she did not have standing under Article III to seek a remedy for the alleged procedural violation of the DMCA’s takedown process.

We argued in the amicus brief that the Supreme Court should grant the petition and vacate the Ninth Circuit’s decision for lack of standing. Although it is improper to issue any ruling on the merits in a case where the plaintiff lacks standing, the harm is magnified where the ruling is substantively erroneous and effectively rewrites a federal statute like the DMCA. Congress intended the DMCA to provide for a rapid response to rampant online infringement, which is time-consuming and costly to police. The Ninth Circuit’s requirement to consider the fair use defense prior to sending a takedown notice places a staggering burden on copyright owners that contravenes both the text of the DMCA and Congress’s purpose in enacting it. Moreover, the DMCA’s procedure for restoring removed material provides internet users with a quick and effective system of relief, especially users like plaintiff Lenz who suffer no concrete injury because their content is ultimately restored through this procedure. We therefore support the Universal defendants’ petition seeking vacatur of the Ninth Circuit’s decision.

Partner Cynthia S. Arato and Fabien Thayamballi co-authored the brief, along with George M. Borkowski of the RIAA. The case is Lenz v. Universal Music Corp., et al., No. 16-218. A copy of the brief is available here.