The YouTube "dancing baby" takedown case, made Internet-famous by lawyers at the Electronic Frontier Foundation back in 2007, looks like it will actually go to a jury about six years after it was filed.

US District Judge Jeremy Fogel ruled today [PDF] that neither Universal Music Group, which asked for the video of a dancing toddler to be taken off YouTube, nor EFF, which represented the child's mother, will win their case on summary judgment. Today's order, which responds to issues raised at an October hearing, means the case will have to proceed to a jury trial if there's no settlement.

EFF argued that Universal's takedown was an illegal one, because the video that Stephanie Lenz posted of her son Holden dancing to Prince's song "Let's Go Crazy" should have been "self-evident" fair use. But here, Fogel agrees with Universal that there's basically no such thing as "self evident" fair use.

"[A]s the Ninth Circuit recently has observed, the process of making a fair use determination 'is neither a mechanistic exercise nor a gestalt undertaking, but a considered legal judgment,'" wrote Fogel. Fair use is an inherently subjective thing, and Lenz is hemmed in here by the precedent set in the Rossi v. MPAA case. So even if Universal ignored fair use—and Fogel ruled that at least some consideration of fair use is required for a company issuing DMCA takedowns—as long as it was inadvertent, they're off the hook. Lenz's EFF lawyers have to prove “some actual knowledge of misrepresentation” on the part of Universal, notes Fogel.

Universal didn't get what it wanted, either, which was for the case to be thrown out without a trial. Fogel ruled EFF will get the chance to show that Universal exhibited "willful blindness" towards the idea the video could be fair use.

So this long-running case may actually proceed to a jury trial, but the damages are so low at this point as to be laughable. Today's order further limits damages, finding that Lenz can't collect any damages for her temporary loss of YouTube's hosting service (it was free anyhow), nor for having her free speech rights "chilled."

However, "Lenz must have incurred at least minimal expenses for electricity to power her computer, Internet and telephone bills, and the like," notes Fogel, so apparently there will be a trial over these piddling expenses, as well as the 4.25 hours of time spent by EFF lawyer Marcia Hoffman in helping Lenz respond to the takedown notice. Even though EFF's work was pro bono, they still may be able to collect fees of around $1,275 for that time.

Overall, the Lenz case is turning out to be a long-fought battle without much at stake. The section of law that prevents bogus takedowns, 512(f) of the Digital Millennium Copyright Act, was weak before this case, is weak today, and will be weak after it. Hardly any victim of an overzealous copyright takedown will be able to harness the legal firepower that was made available to Lenz.