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Why the 'Dancing Baby' copyright case is just hi-tech victim shaming

Want to be a Silicon Valley serf? Keep handing over those rights, rubes

Let's go crazy

Understanding the "Dancing Baby" case properly – to see why Silicon Valley has gone to war – requires you to look beyond the specifics of a baby dancing on YouTube to the underlying legal issues being contested. Silicon Valley has doggedly kept this case running for eight years and it isn't doing so for fun. It wants to extend its own power and diminish everyone else's.

For some readers, looking beyond the immediate absurdities of the case is tough to do. If a case highlights a legal absurdity, then it follows that the law must be repealed. But we don't repeal accountancy fraud laws because they're technically complex or murder laws because sometimes the wrong guy gets caught. Before we repeal a law, we must find out if there is an underlying justified grievance or issue of justice. So a response of "scrap this law" is a serious intellectual cop-out.

In addition, some readers will naturally feel uneasy at discovering they actually have common cause with an "enemy" which the propaganda insists only ever acts against their interests. The Man. We can only take so much cognitive dissonance, but as we'll see, the principles being contested here are universal to anyone posting a family photo. Any dissonance is more a reflection of the effectiveness of the propaganda and the scale of the deception than of any technical complexities.

When individuals lose their rights – particularly ownership or property-ish rights over their own stuff – they're keenly aware of the loss and its consequences. Almost all children can understand it instinctively. So too, most adults. The Big Tech lobby has pursued Lenz so vigorously because it's unhappy with a sop thrown to rights-holders in the 1998 DMCA. This gives an individual the power to assert their digital ownership rights without hiring an expensive lawyer. It's the "takedown and notice" procedure, which enables you to file a request to a host to remove your work, with dire consequences if they fail to comply.

In theory, anyway.

In the case of Lenz vs UMG, a record company employee filed a DMCA request to take down a 29-second clip on YouTube of a baby dancing to a Prince song, "Let's Go Crazy", posted by Ms Lenz many years ago. It's an ideal case for activists to shit their diapers about and wave them around, because on first reading it defies common sense. Ms Lenz thought that the YouTube T&Cs took care of the complicated legal stuff. But they didn't. She was granting YouTube a right to use "Let's Go Crazy", but she didn't have that right.

A 29-second clip of Prince when used by General Motors in a car advert generally earns the rights-holder some serious money, but the baby clip did not leave the rights-holder out of pocket. Few people saw it. Nor did the takedown cause any harm to Ms Lenz.

With copyright law, the simpler and stronger the law, the more licensing goes on. That's largely the point of an exclusive trading right: two parties trade their way to a mutually satisfactory deal. A simple licence between UMG and Google that covered such innocuous use wasn't in place at the time. But that's the fault of Google and UMG, rather than the law. It isn't hard to envisage such a licence condition, one narrow enough to permit music for toddlers while protecting the rights-holder from General Motors wanting to use a catchy tune for an advert without paying. It requires no change in the law.

No litigation ever took place – that was kicked off by Big Tech's EFF attack dogs, which saw a fantastic opportunity. If it could make DMCA requests harder or more confusing for ordinary people to use, then it will have scored a serious victory. As a bonus, US tech companies have long sought a "fair use" defence so broad you could drive a bus through it. Then life would be a lot easier: back to the lazy hammock to think about spending those billions in windfall profits. And it could do so with everyone cheering.


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