Mom continues to chase Prince over 'fair use'

SAN JOSE, Calif.--Stephanie Lenz is an angry Pennsylvania mother who refuses to back down from the music industry.

Lenz's attorneys were in federal district court on Friday morning, trying to thwart a motion to dismiss her lawsuit against Universal Music Group. A year ago, the music label ordered YouTube to pull down a 30-second video she shot of her infant son dancing to Prince's song "Let's Go Crazy."

Lenz, who resides in a rural Pennsylvania area, claims that her video is protected under the Digital Millennium Copyright Act and the Fair Use provision in copyright law. She fought the order, and eventually, Universal Music abandoned any claim that she violated Prince's copyright. YouTube has since reposted her clip.

Now Lenz is out to teach the music industry a lesson.

What Lenz and her attorneys at the Electronic Frontier Foundation want are for media companies to stop sending take-down notices in a "willy nilly" fashion and to make sure that they have a legitimate claim of copyright violation before acting. They failed do this with Lenz's video, according to Corynne McSherry, an EFF attorney.

"This video is so clearly noninfringing," McSherry said. "What we've seen is that Universal Music had the view that they could take down Prince content as a matter of principle. But what they were obligated to do was form a good-faith belief that the video was infringing...They may not have formed a good-faith belief at all."

The good news for her is that U.S. District Judge Jeremy Fogel said he would take the matter under consideration after hearing arguments from both sides.

In April, Fogel tossed out the lawsuit Lenz filed against Universal in October. Fogel said her argument that Universal was misusing its copyright was weak.

The judge did allow Lenz's EFF attorneys, however, to try their arguments a second time.

EFF promptly filed a second complaint, arguing that Universal Music should compensate Lenz for falsely accusing her of violating the law and getting her video removed from Google's video-sharing service. The music label has asked the judge to dismiss the case.

A lawyer for Universal Music argued that the label isn't liable for ordering Lenz's video to be removed because it doesn't have to think about Fair Use prior to sending take-down notices. There is no legal obligation to think about it in advance.

EFF, which advocates for the rights of Internet users, disagrees. The group has always said there is real harm caused when a media company issues take-down notices. For example, Lenz had to spend time learning why her video was taken down and convincing YouTube that she had not violated copyright law.

Even though Universal Music now says it no longer considers Lenz's baby video to be infringing on its copyright, Lenz says just receiving the take-down letter caused her harm.

Fogel gave no timetable on when he might make a decision. Should he decline to dismiss the case, Lenz's lawsuit would be allowed to move forward.

[Pete Bardo]

Go for it Stephanie. You're going to need all the help you can get with this effort.

[Jack K1]

Ha! The video has been pulled down once again.

The funny thing is - when I could listen to music freely, I could discover what I liked and didn't like - and could then go BUY the artist's work(s) in a more convenient format.

Now that I can't really do that, I've stopped buying music because I'm sick of plunking down ten or twenty dollars only to find myself disappointed.

[sanenazok]

Oh look the "piracy for sampling" argument out in the wild. Here I thought I would only see it in history books post Napster.

[ToddWBeaver]

As described in this article, the suit is without merit. And what type of compensation should she be awarded? Absolutely nothing. She used copyrighted material without permission.

Perhaps it's stupid of the record company to pursue this. I'd argue the video is free advertising for the music and might sell more CDs or downloads. I can't image them losing money because somebody can watch a video featuring that song. But it's their right to be stupid.

[ittesi259]

So you are basically saying that filming an infant dancing to whatever happens to be playing is a violation of copyright? Let me see your home movies and let the music industry sue you for every bit of background music that may be playing then.

[skotmiller]

So when Americas Funniest Videos shows a clip with a song in it, should the industry go after the individual that submitted the tape or the station that played it? I'm confused.


Screw the record industry, support independent artists. Go Local.

[The_Decider]

Have you ever sung happy birthday to someone?

If you have, you are in violation of copyright unless you secured permission first.

[Renegade Knight]

Fair use is a right.
A right is not something a company can take away. When they do, they deserve punative damages.
The clip isn't much in the scheme of things.
But the right is far more important than the clip.
I've had the DCMA takedown notice used to cost me money when I'm well within my rights (resellingone piece of unused, and uninstalled software). MS cost me money because I was trying to sell an uninstalled version of Vista Home premium, to help pay for the Vista Ultimate that I did insall.
Microsoft refused to work with me or solve the probem they created. Alas I didn't have the EFF helping me out either.

[Happyclam]

You might want to familiarize yourself with what 'Fair use' constitutes.

Her usage falls under 'Fair usage' under the DMCA act, as shown by the fact that the record companies dropped the suit. This is simply symptomatic of the fact that the record companies are using strong arm tactics on anything they think infringes on their copyrights, regardless of whether it does or not. They are trying to rely on the fact that most people won't spend money to fight the suit. You see the same tactic in IP infringement cases where company A sues company B and they settle rather than trying to fight the suit, regardless of whether company A has merit or not.

[MSSlayer]

The big media companies need to get sued and sued often. This is not like it is a rare occurance for them to overstep their bounds.

The big record companies are so dumb, they probably won't learn their lesson even when they are shuttering their buildings.

[aka_tripleB]

I don't see how anyone would think that a take down notice would work on that clip seems how it's near impossible to identify the song with the audio quality.

[Travis Ernst]

I'll comment on this again. Not being a fan of The Purple One, I can't even make out what is playing. All I can tell is it's some guitar riff. Now if you can clearly identify the trx more power to you. You must be a fan of Paisly Park man himself. The kid is excited and music is playing. It's not an attempt to steal an entire track of his work.

[whatgoes]

Why can't the websites make the music industry provide a court order to remove illegal posts? Innocent until proven guilty!!!

[The_Decider]

Because the unconstitutional DMCA says they don't have to anymore.

The rule of law has been replaced with corporate rule.

[ahwiv]

The websites need to maintain their safe harbor protections under the DMCA. That's why they register with the copyright office. However, the copyright holder who submits a takedown notice does so under penalty of perjury. Need some enterprising DA to file perjury charges against the agent filing the takedown notice. That will ratchet up the confrontation.

[t26l]

@ToddWBeaver:

She doesn't need permission to use the music in the clip. That's the point. I'm not sure she deserves compensation, but I know that the recording industry needs to be taught a lesson. They cannot abuse the law and intimidate individuals w/ invalid threats.

[t26l]

@ToddWBeaver:

She doesn't need permission to use the music in the clip. That's the point. I'm not sure she deserves compensation, but I know that the recording industry needs to be taught a lesson. They cannot abuse the law and intimidate individuals w/ invalid threats.

[contentcreator--2008]

Nobody cares about the baby or the crummy audio on this particular clip. Follow the money. This is all about Youtube compensating the movie studios. When you have a million of these different clips getting served everyday and (hopefully for youtube) a lot of advertising getting sold against that viewership, the music industry is going to want and deserve a piece of that pie --- the musicians are in part the ones supplying the content making the advertising money possible. How many pennies can you give away as inconsequential before you go --- wait a minute, that's real money! They have to continue a blizzard of takedowns to establish the overall story, even if each one is individually meaningless. This lady is the blade of grass on the battlefield as the titans skirmish.

[The_Decider]

Everything you wrote is meaningless because you ignored the fact that fair use applies in this case and Universal had no right to send a takedown notice.
Violating others right and the law is hardly the way a legitimate company establishes a case.

[runswithscissorsXX]

Couldn't she sue the label for legal harassment? If the labels lawyers knew the video was *not* infringing, they had no ground to ask the video to be removed. It would still ring true if the lawyers had no clue whether the video was infringing or not.

[TV James]

Shouldn't Prince be spending his/her time fighting irrelevance?

[Renegade Knight]

They may not have to think about fair use, but they do need to think about the consequenses of their actions. Those consequences have an impact and that can be financial. It's not a no harm no foul situation when they infringe on fair use.

[gerrrg]

Universal Music Group's lawyer's suggestion that it does not need to apply a litmus test in order to file a take-down notice seems an awful lot like modern Republican thinking. For instance, the government doesn't need to use a litmus test to place people on the No-Fly list, to eavesdrop, and to suspend habeas corpus. (How else could dead people appear on the No-Fly list?)

Either that, or intelligence (double entendre) just isn't worth that much, so no one uses it.

[sanenazok]

I hope this lady wins, I mean I hope the EFF wins. It's about time take down notices require some thought.

[wango2007]

by ToddWBeaver
"I'd argue the video is free advertising for the music and might sell more CDs or downloads."

--------

All freeloaders tend to say stuff like this. The music company should be legally entitled to decide if they want free advertising or not.

In this case, the sound quality is so bad it is likely to hurt record sales.

[The_Decider]

Copyright holders have no right to say how a person legitimately uses fair use.

[Sickthing]

EFF, very nice work. I don't think this has a chance of going any place because the argument on damages is so very weak. It does send a very clear message. What is going on?, I can't copy my old digital stuff, I can if I had the expensive equipment to do it wth. I have an extremely rare copy of an Alice Cooper video that I can't get a copy of and it is on video tape that I paid for! A legal copy. I tried to get a professional to make a copy and he said the law prevents him from doing so.. He then told me I could do it if I had the right equipment! It is legal for me to do it. Has the law actually done anything for artist? i can download any tune any time so it has done NOTHING. I don't work with EFF but I hope everyone will go donate at their site!

[mattumanu]

What the EFF should do at this point is begin constructing a class action suit. There have been thousands of other takedowns that were as aggregious as this one... I remember the nonsense that came up when Viacom sent a take down notice over the show Web Junk 2.0, where they used a clip from a youtuber without his permission. Then, when the youtuber used a clip from the segment on Web Junk that used HIS clip, the sent a take down notice against him.

http://arstechnica.com/news.ars/post/20070830-viacom-caught-in-copyright-infringement-loop.html

So yeah, someone needs to bust these big companies in the chops, if for no other reason that to set precedent so that there will be case law that curtails the indiscriminate use and abuse of the DMCA.

[imacpwr]

"The Has Been" formerly known as "Prince" and his record label will one day find themselves washed away in a "Purple Rain".

[gabeheim]

Let me tape your mouth shut, after all, speech is not a right according to your argument. There is a reason for fair use that is protected in the constitution, it's called free speech. Copyright < 1st amendment, hence free speech. Fair use is how you say "this is my son dancing to the music he likes". For the label to send the takedown notice is a violation of her first amendment rights, freedom of speech/press. Just as if I taped your mouth shut you could go after me, criminal or civil, for violating your civil rights, she can go after the label. Or perhaps you're one of these music industry nazi's. And yes, i used that word, because if you try to thwart american's constitutional rights, whether you're the KKK using terrorism or businesses abusing the legal process, then you're no better than nazi's or communists.

[JWreford]

If this video is considered illegal or improper use than I would have to say any home video that has music playing in the background is illegal and 90% of America should be sued. Besides the fact that the music is next to impossible to hear, I did not even know it was Prince, I fail to see how it would be considered stealing. It isn't even the entire track. Thousands of videos and mp3 are stolen every day and this is what Big Business chooses to focus on. No wonder we live in such a crappy society. Big Business is always throwing their weight around, even if they are in the wrong. If they have to start paying for damages or a fine for their stupidity then perhaps they might think twice before doing it again. They do this in the pursuit of money. They have probably made money on this some how, publicity. Prince, in my mind should step in here and apologize on behalf of this music company. Some good will or something along those lines. Show that he is a good person and that the company that releases his music isn't as dumb as they appear. As for the mother's damages... she rightly deserves damages. She had to spend her time and effort to fight back. Is your time and effort not worth compensation? Now the Music Company is saying it isn't an illegal video? Back peddling in my mind. They made a mistake that affected other people. They should have to pay. If you or I made a mistake than we would have to pay. They need to be held accountable for the actions. Not that I would ever want to hear Prince's music, I now never want to hear music that is put out but this particular music company. This is just another case of Big Business trying to hose the little man. The rich live off the backs of the poor.