The Electronic Frontier Foundation's "Dancing Baby" copyright case has been going on for nearly a decade now in one way or another, and its last stop will be the US Supreme Court.

On Thursday, though, the US solicitor general and the US Copyright Office recommended against the court taking the case. That increases the chances the 9th Circuit ruling from last year, which was a mixed bag from EFF's point of view, will stand and remain law.

"The court of appeals correctly held that liability under the DMCA requires actual knowledge or willful blindness," state the government lawyers in their brief (PDF).

This is the first time the Office of the Solicitor General, which represents the US president at the Supreme Court, has weighed in on a copyright case since President Donald Trump took office. Trump's pick for US solicitor general, Noel Francisco, is still awaiting a hearing at the Senate Judiciary Committee. The government's brief for the "Dancing Baby" case (Lenz v. Universal) was written by the acting solicitor general, Jeffrey Wall. Wall became acting solicitor general in March of 2017.

A brief synopsis of this long-running case: in 2007, Universal Music Group sent a DMCA takedown notice over a home YouTube video created by Stephanie Lenz. She had published 29 seconds of her toddler dancing to the Prince song "Let's Go Crazy," which is barely audible in the background. EFF took on Lenz as a client and sued UMG, arguing that the video was obviously fair use, and Universal should have at least considered fair use before sending a takedown notice. The advocacy group said UMG should be forced to pay up under 17 USC 512(f), which allows for courts to order damages against copyright holders that have been misleading in their DMCA takedown notices.

After years of back and forth, the case went to the US Court of Appeals for the 9th Circuit. The appeals judges held that Universal was obligated to consider "fair use," which was a win for EFF. On the other hand, they said, as long as UMG had a "good faith" belief that its takedown notice was legitimate, the record label was following the law.

That ruling could have set things up for a jury trial in the district court, with EFF and music industry lawyers squaring off in front of a jury over whether or not UMG truly had that "good faith" belief in its own actions. Before that, though, EFF appealed (PDF) to the Supreme Court, saying that the 9th Circuit set the bar too low.

The appeals court "held that a copyright holder cannot be held liable for causing the takedown of lawful content as long as it subjectively believes the material is infringing—no matter how unreasonable that belief may be," wrote EFF lawyers in their petition to the Supreme Court. "Left undisturbed, the ruling in this case gives a free pass to the censorship of online speech, particularly fair uses."

Further Reading Universal demands takedown of homemade dancing toddler clip; EFF sues

In October, the Supreme Court asked for the solicitor general's opinion on the matter. The SG filed its brief on Thursday.

The solicitor general's brief stresses that the standard for imposing 512(f) penalties is that a copyright owner "knowingly materially misrepresents." The "knowingly" part requires "something more than negligence," asserts the government.

"Congress could have imposed liability on a copyright owner that 'had reason to know' or 'should have known' that the challenged material was not infringing, but it did not do so," writes the solicitor general. "Instead, it limited liability to misrepresentations made 'knowingly.'"

Now that the solicitor general has weighed in on the matter, the high court could decide to take the case, or reject it, any day.