A nearly decade-long copyright dispute over a silly YouTube video of a baby dancing to a barely audible Prince song continues, with the U.S. Supreme Court now asking for the federal government to give its thoughts on the matter.

The TL;DR Version • In 2007, Universal Music sent aDMCA takedown demand to YouTube over a 29-second video with a Prince song playing in the background.

• The video’s uploader, Stephanie Lenz, had the clip reinstated after 6 weeks by showing that it was a protected fair use of the song.

• She then sued Universal, alleging it had violated the DMCA by filing a frivolous takedown demand and by not considering fair use exemptions.

• Both a U.S. District Court and the 9th Circuit appeals court agreed that Universal should have considered fair use.

• But the 9th Circuit also said that Universal could only be held liable if it was shown to knowingly violate the DMCA.

• Lenz has petitioned the Supreme Court, arguing that this standard is so high that it allows copyright holders to abuse the DMCA with near impunity.

• The Supremes have not yet decided to take up the case, but today asked for the U.S. Solicitor General to file a brief expressing the federal government’s view of this issue.

Once again, if you’re familiar with the ins/outs of this case, you can probably skim over the next bit. For the rest of you, here’s the quick history of how a 29-second YouTube clip became the center of a debate about copyright and the Constitution.

Let’s Go Crazy

In Feb. 2007, Stephanie Lenz uploaded a short video of her baby boy having a good time in the kitchen while the 1984 Prince and the Revolution song “Let’s Go Crazy” played in the background, barely discernible between the other noise in the clip and the quality of your typical early-days YouTube upload.

At the time, record companies and movie studios were still using real human beings to scan for potential copyright infringement on YouTube and other sites (the process is now largely automated).

Shortly after Lenz posted the video, it came to the attention of one such flesh-and-blood being at Universal who then included it on a list of Digital Millennium Copyright Act (DMCA) takedown notices the company sent to YouTube.

The DMCA allows for websites to avoid liability for content uploaded by third parties if the site responds in a timely matter to alleged copyright violations. This is why YouTube and many other large sites operate under a “take down first, ask questions later” approach.

YouTube took Lenz’s video down in response the Universal request, and it remained offline for about six weeks. But Lenz obtained legal representation and convinced the Google-owned site to reinstate her her video because it constituted a protected “fair use.”

The DMCA Cuts Both Ways

To some, that small victory would have been enough, but Lenz believed the Universal violated its obligation under the DMCA, which prohibits copyright owners from misrepresenting the nature of an alleged violation. In fact, sending a merit-less takedown DMCA demand could make Universal “liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer.”

Lenz’s stance is that anyone who viewed the video would have seen there was no commercial intent and that it was a clear instance of a protected fair use. She, now with the support of the Electronic Frontier Foundation, sued Universal Music in July 2007, alleging that the publisher had not considered the possibility that the short burst of music in the dancing baby video fell under the fair use umbrella.

Universal argued that the DMCA doesn’t specifically mention fair use, so it has no obligation to consider this factor. The company also claimed that fair use is not an “authorized” use of a copyrighted work; it’s just an excusable use of that work, so it was right for Universal to file the takedown demand and then relent after later considering fair use.

But in 2008, a U.S. District Court disagreed, pointing out that the Copyright Act’s section on Fair Use explicitly states that fair use is “not an infringement of copyright.”

Then in 2015, the Ninth Circuit Court of Appeals noted that “Fair use is not just excused by the law, it is wholly authorized by the law.”

However, the appeals panel’s ruling also set an incredibly high standard for Lenz — or anyone else in her situation — to prove that a copyright holder had made a frivolous DMCA claim, stating that a “copyright owner cannot be liable simply because an unknowing mistake is made, even if the copyright owner acted unreasonably in making the mistake.”

Instead, Lenz must demonstrate that Universal had “some actual knowledge of misrepresentation” when it filed that controversial takedown demand. In other words; it’s not enough for Universal to have made a frivolous DMCA claim, it must have known it was sending a merit-less takedown request.

To The Supremes

Lenz petitioned the Supreme Court earlier this year, arguing that the standard set by the appeals has effectively rendered fair use protections against the DMCA “all but meaningless.”

“Left undisturbed, the ruling in this case gives a free pass to the censorship of online speech, particularly fair uses,” reads the petition. “An author could cause a hosting service to take a critical review offline, without fear of consequence, if she held the mistaken view that the reviewer’s use of a quote was unlawful. A political candidate who thought using an excerpt of her speech in a series of videos was necessarily infringing could flood her opponent’s YouTube channel

with takedown notices and cause it to be taken offline altogether in the middle of an election season, again without consequence.”

The petition contends that there’s no reason a rights holder couldn’t defend themselves by claiming that their belief in a copyright violation was based on something told to them by a fortune teller.

Universal Fires Back

On Sept. 26, Universal filed its response [PDF] to the Lenz petition, arguing that the Supreme Court should not even take the case up for review.

The company’s stance is that Lenz is overlooking the safeguards built into the DMCA, that she and others have been able to restore their content through existing avenues, sometimes in just a matter of days.

Additionally, Universal contends that the DMCA compels websites to stifle speech or remove content, arguing that the law “merely offers a safe harbor from monetary relief for service providers who comply with requests to remove and to restore content.”

Then on Oct. 11, Lenz filed her own reply [PDF], claiming that Universal is incorrectly “insisting takedown abuse is rare and, where it happens, the victims of takedown abuse should content themselves with the counter-notice process.”

The reply points to a recent study from researchers at U.C. Berkeley and Columbia University, which looked at 108 million DMCA takedown request sent over a 6-month time period and found that 7.3% of them (7.88 million) were arguable fair use instances, and another 2.3% (3 million) were requests that seemed to have nothing to do with copyright, but were about trademark or defamation claims. That’s nearly 11 million requests in half a year.

“Those takedowns amount to extrajudicial prior restraints, without any of the legal protections that would normally attend,” reads Lenz’s reply, which also takes issue with Universal’s claim that the DMCA resolution appeals/resolution process is easily understood or navigable.

“While some users have been able to have their speech promptly restored and in a very few instances even have obtained monetary recompense, most users lack the resources to pursue such remedies,” reads the filing. “Moreover, that argument suggests that Congress intended to give private parties an easy path to censorship – just a temporary one.”

Where Things Stand

This morning, the Supreme Court released its latest order list, denying dozens of petitions, granting a couple, and in the case of Lenz v. Universal, asking for input from the U.S. Solicitor General, the federal government’s official representative in matters before the Supreme Court.

More precisely, SCOTUS has invited the Solicitor General to file a brief to express the federal government’s view of this dispute, which by the time it’s ultimately resolved will likely have seen three different presidents take office.

What does this portend? The fact that the Supremes haven’t yet made up their mind appears to be an indicator that they weren’t entirely won over by Universal’s arguments against the case.

EFF Legal Director Corynne McSherry — the counsel of record for Lenz in this case — tells Consumerist that EFF is pleased by today’s news.

“This case raises essential questions about the future of online fair use that are deserving of Supreme Court review and we hope the solicitor general shares that view,” says McSherry.

We’ve also reached out to the attorney representing Universal in its petition and will update if we get any statement.