"Dancing Baby" Decision Affects DMCA Notice-and-Takedown Provision

Ninth Circuit Amends "Dancing Baby" Decision: Lenz v. Universal Music Corp., Nos. 13-16106, 13-16107 (9th Cir. Mar. 17, 2016)

On Thursday, the Ninth Circuit amended its prior opinion in the famed "Dancing Baby" case, at the same time denying both parties' petitions for panel rehearing and plaintiff Stephanie Lenz's petition for rehearing en banc. Though the amended order left intact the court's affirmance of the district court's denial of cross-motions for summary judgment relating to the propriety of Universal Music's takedown notice under the DMCA, the Ninth Circuit panel issued an amended opinion and dissent differing from the originals in significant respects.

First, the Ninth Circuit left intact its original holding that the DMCA's notice-and-takedown provision of 17 U.S.C. § 512(c) "requires copyright holders to consider fair use before sending a takedown notification," but removed the statement that failure to consider fair use "raises a triable issue