Today EFF filed a petition asking the Ninth Circuit to revisit some aspects of its big decision in Lenz v. Universal, also known as the dancing baby case. While we celebrated parts of the court’s ruling—particularly the holding that copyright owners must consider fair use before sending DMCA takedown notices—the majority decision also set the bar for enforcing that requirement far higher than Congress intended. We have asked the Ninth Circuit to rehear the case en banc to address those elements of its ruling that risk leaving many victims of improper takedowns without a practical vehicle to vindicate their rights.

In particular, we are concerned about the court’s suggestion that copyright holders should be held to a purely subjective standard. In other words, senders of false infringement notices could be excused so long as they subjectively believed that the material they targeted was infringing, no matter how unreasonable that belief. The panel felt that this holding was required by an old Ninth Circuit case called Rossi v. MPAA. As we explain in our brief, the Rossi case involved very unusual facts (the website owner fraudulently represented that his site contained full movies for download) and its adoption of a subjective standard was both unnecessary and inconsistent with the statute. Ultimately, a purely subjective standard rewards sloppiness and creates a perverse incentive for copyright owners to not learn about the law before sending a takedown.

The DMCA gives private parties an unprecedented tool for silencing online speech. By simply sending an email or filling out a webform, it is possible to remove speech on many of the sites people use every day to communicate. We do not believe that Congress created this tool without expecting copyright owners to behave reasonably. While we remain pleased about the ruling that copyright owners must consider fair use before sending a takedown, we think that the Ninth Circuit has more work to do to ensure that the DMCA offers the protection for free speech that Congress intended. We hope the court grants our petition and revisits these parts of its decision.

Universal has also filed a petition for rehearing asking the court to find that Stephanie Lenz was not injured by the removal of her video from YouTube and that the court therefore lacks jurisdiction to hear the case. We strongly disagree.