The Pennsylvania mother who sued Universal Music over a YouTube video of her toddler dancing to a Prince song isn't having much luck in court.
Last October, we wrote about the suit that Stephanie Lenz filed in federal court in San Jose claiming the record label had abused the Digital Millennium Copyright Act by sending YouTube a notice of copyright infringement. Three lawyers from the Electronic Frontier Foundation are representing Lenz.
Lenz's 30-second video shows her son Holden, then 13 months old, dancing in the family's kitchen with the Prince song "Let's Go Crazy" partially audible in the background (Universal represents some of Prince's publishing rights). It led to a DMCA takedown notice from Universal.
On April 8, U.S. District Judge Jeremy Fogel threw out Lenz's lawsuit against Universal, saying the argument that Universal was misusing its copyright was weak--and that the case wasn't really akin to the Diebold wrongful-use-of-the-DMCA lawsuit. Here's what Fogel wrote:
Diebold is distinguishable based on its facts; although it included a takedown of hundreds of emails, the defendant failed to identify any specific emails containing copyrighted content, and it appeared to acknowledge that at least some of the emails were subject to the fair use doctrine. Here, it is undisputed that the song "Let's Go Crazy" is copyrighted, and Universal does not concede that the posting is a fair use... There must be a showing of a knowing misrepresentation on the part of the copyright owner. Lenz fails to allege facts from which such a misrepresentation may be inferred. Lenz also fails to allege why her use of "Let's Go Crazy" was a "self-evident" fair use. Accordingly, Lenz's first claim will be dismissed, with leave to amend.
Fogel also rejected the other two arguments. EFF had asked for a ruling that the 30-second snippet did not violate copyright law; Fogel concluded it was unnecessary because "Universal has indicated it had and presently has no intention of ever asserting an infringement action directly against Lenz based on the 'Let's Go Crazy' video."
The video, by the way, is back up on YouTube.
But Fogel did say that EFF could try to make its misuse-of-copyright argument a second time. EFF did just that by filing a second complaint (PDF) on April 18. It says, in part:
Defendants had actual subjective knowledge of the contents of the Holden Dance Video and that it did not infringe any Universal copyrights on the date they sent YouTube the takedown notice regarding the Holden Dance Video... Defendants should have known, if they had acted with reasonable care or diligence, or would have no substantial doubt had they been acting in good faith, that the Holden Dance Video did not infringe any Universal copyrights on the date they sent YouTube their complaint under the DMCA.
The case is noteworthy because so few lawsuits over DMCA misuse have been filed. Diebold, which sent dozens of cease-and-desist letters after internal leaked documents appeared online, appeared before Judge Fogel--and ended up writing a check to EFF for $125,000.
Facebook has denied giving the Moroccan government information to identify a man who was sentenced to prison for posting a fake profile of a Moroccan prince.
A Moroccan court last week sentenced the 26-year-old IT engineer to three years and fined him 10,000 dirhams ($1,320) for setting up a Facebook account in the name of King Mohammed's brother, Prince Moulay Rachid.
Some civil-liberties groups questioned whether Facebook helped the Moroccan government locate Fouad Mortada.
Supporters of Mourtada have set up a Web site to call attention to his case.
(Credit: HelpFouad.com)But The Wall Street Journal on Friday quoted Brandee Barker, a Facebook spokeswoman, as saying in a statement that while the company's privacy policy and terms of use allow it to share data with law enforcement and other government agencies "when it has a good faith belief it is legally obligated to do so...Facebook has shared no such information with the Moroccan authorities."
According to Amnesty International, Mourtada said two plain-clothes security agents arrested him on the morning of February 5.
They blindfolded him and covered him with a sheet, he said, then drove him to an unknown place where they beat him until he "confessed" that he had placed a profile of the Prince on the social-networking site to "get girlfriends."
Mourtada, however, said he posted the profile out of admiration for the prince, and not out of a desire to undermine the monarchy as asserted by the prosecution during the trial. The court convicted Mourtada of modifying and falsifying information technology data and usurping an official's identity; the case is expected to go to appeal.
While Facebook prohibits users from impersonating others, the site is nonetheless full of false profiles of well-known personalities.
Mourtada's family has sent the prince an appeal for clemency. In addition, a Web site set up by Mourtada supporters has declared Saturday as an international day of solidarity, with protests on his behalf scheduled in cities including Rabat, Paris, Montreal, London, Brussels, Washington D.C., Amsterdam, and Madrid.
U2
(Credit: U2.com)Looks like it's U2's turn to take a pounding from the bloggerati.
A speech on Monday by Paul McGuinness, manager of the band U2, was a call to arms against piracy. He wants to fight file sharing by forcing Internet service providers to ban people who pirate music. He suggested that Apple and other makers of digital music players were wrongly profiting from their "burglary kits."
McGuinness told a gathering of music insiders at the Midem music conference in Cannes, France, that music is making lots of people lots of money. Unfortunately, that money isn't finding its way to artists. He placed much of the blame on tech companies, but also pointed a finger at record labels that "through lack of foresight and planning allowed a range of industries to arise that let people steal music."
Not surprisingly, U2, one of the world's most beloved bands for more than two decades, is under attack in the blogosphere.
"U2's manager tells us why we are bad," "U2's crazy manager wants to go after tech firms," and "U2 McGu's ISP rant" are just a few of the headlines coming from outraged bloggers.
The band has not commented one way or the other on McGuinness' speech, but one would have to think they were apprised before he said it. A copy of the speech is posted on U2's Web site. Either way, like Prince, Nine Inch Nails' Trent Reznor and (the granddaddy of all musicians who spoke out against file sharing) Metallica's Lars Ulrich before them, Bono & Co. are getting worked over.
Here's some of the wittier and more brutal comments...
"McGuiness is whining about this at the same time that U2 is pulling in incredible profits, making $355 million on its last tour," wrote Mike Masnick at the blog Techdirt.
Wired.com's Ryan Singel offered this: "Threat Level agrees that ISPs shouldn't get away consequence-free for transporting evil bits. But we counter-propose that ISPs use any nascent filtering technology they have developed to blackhole U2 and its frontman who goes by the ludicrous moniker Bono."
Privacy advocate Lauren Weinstein takes the manager to task for his comment about the tech sector's "hippy values."
"Paul has homed in on well-known hippie freaks like Steve Jobs and Bill Gates," Weinstein quipped. "You do remember when Steve and Bill used to hang out with Timothy Leary, right? No? You don't recall Switch On, Log In, and Buzz?"
The struggle for economic control of music is looking more and more like war between corporations and consumers. On one side, the record industry has an army of lawyers ready to sue. On the other, consumers have an army of bloggers ready to ridicule.
Choose the wrong side, and prepare to take a public whipping. At this point, no musician who takes up the pro-copyright banner should be shocked when he or she is branded a traitor and longtime fans swear they'll never buy their music again.
But if file-sharing really is hitting these musicians in their wallets, maybe they don't care.
The music industry is preoccupied with giveaways these days.
The latest example will come on Sunday, when New York Daily News subscribers will find an access code in their paper that they can use to retrieve three free songs from EMI Music.
Subscribers punch the code into the newspaper's Web site, Nydailynews.com and the music is theirs. They have over 120,000 tracks to choose from.
Among the songs available is an unreleased track, "It's Love" by Ringo Starr. The promotion will also run on the following Sunday, the day of the Grammy awards.
Combining music with newspapers (two industries being pummeled by the Internet) was a powerful mixture for rocker Prince last year. The rocker made news last July by giving away copies of one of his CDs to readers of a London tabloid.
Lenny Kravitz is launching a similar giveaway in Great Britain on Feb 3.
Radiohead redefined music giveaways with its "pay-what-you-want" offer in October.
There's plenty of people in the music industry that fret that giveaways devalue music.
While it must be noted that the Daily News is compensating EMI for the songs, it's still important to point out that to the public, these days the word "music" trails the word "free" like a caboose.
Should troubled file-sharing site Qtrax, eventually strike licensing deals with the major music companies, it still may face a significant hurdle.
Web Sheriff, a company representing music acts such as Prince, Van Morrison, and The Black Crowes, has notified Qtrax that it shouldn't think about offering their music, photographs, or other intellectual property until it has secured the artists' OK.
"Whilst Qtrax is an interesting model, many major label and indie artists will not be happy about their music being given away free (to consumers) in return for a currently opaque return from advertising revenues," said John Giacobbi, Web Sheriff's president, in an e-mail.
A British firm that protects digital content from piracy, Web Sheriff has informed Qtrax that in some instances artists must give permission--in addition to the music labels--before their songs can be legally distributed, Giacobbi said.
While Qtrax doesn't appear to have begun offering music downloads, there are photos posted to the site of artists such as the Foo Fighters, Daft Punk, and Wyclef Jean.
Daft Punk is on the EMI label while Jean and the Foo Fighters are represented by Sony BMG Music Entertainment. Representatives from Qtrax and the labels could not be reached for comment late Monday evening. It's unclear whether Qtrax has permission to use the photos.
"Any unauthorized use of copyright photos and/or copyright artwork is in violation of (the law)," Giacobbi said.
Qtrax wants to harness the popularity of illegal file sharing by offering a free, legal peer-to-peer service. The company said that it had deals in place that called for it to share ad revenue with music companies.
But Qtrax has been awash in controversy since Sunday, when questions were raised about whether the company possessed the rights to offer music from the four largest record companies.
For weeks, Qtrax managers had led reporters to believe that it had locked up licensing deals with the top record companies. Just hours before the site's scheduled Monday-morning launch, the labels began denying that the deals existed. Qtrax executives responded by holding up the unveiling of the music service.
Since then, sources close to the company said that Qtrax executives have waged an all-out campaign to tie up the loose ends. They have held numerous meetings with the labels during the Midem music conference in Cannes, France.
If nothing else, Qtrax's troubles show how hard it is to secure the many varied rights and releases needed to legally distribute music.
Giacobbi said he informed Qtrax's leaders that before offering music online, the start-up would first have to obtain master recording copyrights, musical composition copyrights, artwork copyrights, trademarks, performers' rights, moral rights, and publicity rights.
Prince is close to making up with three fan sites that spent the past week trading nasty publicity releases with the purple music king.
Prince Fans United (PFU), a group formed by three fan sites dedicated to Prince; Housequake.com, Prince.org, and Princefams.com, was trying to hammer out an agreement with the artist's representatives on Wednesday, according to Gavin McLaughlin, a spokesman for the group.
PFU was formed after Prince allegedly demanded that the sites remove all "photographs, images, lyrics, album covers and anything linked to Prince's likeness," the site operators claimed.
"We're in the process of agreeing to terms with Prince and hope to have a statement out by (Thursday) morning," McLaughlin said in an e-mail.
Last week, the fan sites said that Prince's demands were unlawful and maintained they had the right to post images of him under the law. Much of the media slammed Prince for appearing to sue his fans, but his representatives denied that this was his intent.
In what was apparently a peace offering, Prince gave permission to the fan sites to post a new song of his called "PFUnk." The song is available on PrinceFansUnited.com.
The cease-and-desist letters sent to the fan sites are believed to be part of a a two-month old campaign Prince launched to protect his copyright on the Web.
Continuing an aggressive campaign to defend his copyrights, pop star Prince is preparing to file lawsuits within the next few days in three countries--including the United States--against The Pirate Bay, CNET News.com has learned.
John Giacobbi
(Credit: Web Sheriff)One of the world's best-known BitTorrent indexing sites, The Pirate Bay has defiantly linked to pirated copies of films, TV shows, music videos, and other content while often boasting that it ignores Hollywood's requests to remove them. The Pirate Bay does not host any unauthorized content, but the service is internationally famous for being a highly effective file-sharing tool.
Prince will file similar suits against The Pirate Bay in the U.S., France, a country with laws favorable to copyright owners, and Sweden, where The Pirate Bay is based. In addition, Prince is preparing to take civil action against companies that advertise on The Pirate Bay, many of which are headquartered in Israel, according to John Giacobbi, Web Sheriff's president.
Prince has hired Giacobbi and Web Sheriff, a service that protects copyright materials from Internet piracy, to coordinate the legal challenges against The Pirate Bay and others who the singer believes has violated his copyright.
Giacobbi said Web Sheriff is also helping to launch an investigation into The Pirate Bay's off-shore connections to determine whether the company is compliant with Swedish and international income and corporation tax laws.
The Pirate Bay has already weathered several attempts by the governments of Sweden and the United States to shut down the site. Yet, this is likely the largest civil challenge the Web site has ever faced.
At the core of Prince's lawsuits are his claims that the three founders of The Pirate Bay are profiting from the work of artists without compensating them. The Pirate Bay earns $70,000 a month in advertising revenue, Giacobbi alleged. The site's founders have previously denied that the operation makes money.
None of the three founders of The Pirate Bay could be reached for comment.
The Pirate Bay Founders, Peter Sunde, Fredrik Neij, Gottfrid Svartholm
(Credit: Pontus Alexander/Fabian Landgren)
Prince, who Giacobbi said has the backing of the International Federation of the Phonographic Industry, or IFPI, the group that represents the recording industry worldwide, is only adding to The Pirate Bay's legal troubles. The site founders also face criminal charges, according to a story published Thursday on the blog TorrentFreak.
A prosecutor in Sweden announced that he plans to press charges against five people involved with The Pirate Bay before January 31, 2008, the blog reported. The five are being accused of infringing on intellectual property.
The copyright battle that Prince has waged the past two months has not been without its costs. He was widely criticized this week when three unauthorized fan sites accused him of trying to violate their free speech rights when his handlers demanded that they remove several photos of him.
It was widely reported this week that Prince had begun suing fans. His representatives denied this.
"Prince is not suing his fans, is not looking to penalize fans and nor is he looking to inhibiting freedom of speech in any way," said AEG, Prince's promoter.
Prince began making headlines in September after lashing out against sites he believed were violating his intellectual-property rights.
In September, the singer said he planned to take legal action against The Pirate Bay, YouTube, and eBay. As of Friday, Prince's lawsuits appeared to be solely targeted at The Pirate Bay.
By suing The Pirate Bay in three different countries, Prince is hoping to put financial pressure on the service, Giacobbi said. Copyright laws in the United States and France would also make it nearly impossible for a site like The Pirate Bay to triumph, he claimed.
"There is no way that they will have any defense because it's blatant piracy," Giacobbi said. "They'll either have to come out and fight or just try and ignore it. In that case, we're going to win a default judgment against them. This could be a ticking time bomb for them. They can't outrun this. We are very confident."
Prince can't push this mother around.
The pop star wanted YouTube to remove a clip of an infant boy dancing to his 1984 hit song "Let's Go Crazy." When the clip got scrubbed, the baby's mother cried foul and filed suit asking for damages. The woman's lawyers at the Electronic Frontier Foundation (EFF) say the dancing-baby clip is the poster child for fair use.
Corynne McSherry, the EFF attorney representing the baby's mother, Stephanie Lenz, said the music on the clip is barely audible and that Lenz, from rural Pennsylvannia, posted the video for noncommercial uses. Copyright owners are often too quick on the trigger when it comes to sending takedown notices to YouTube and other Web sites, according to McSherry.
The Digital Millennium Copyright Act enables owners of intellectual property to demand that unauthorized copies of their work be removed from Web sites. But Congress also built in safeguards to prevent copyright owners from making misrepresentations.
"We've seen a lot of abuse of the takedown procedures," McSherry said. "It's very easy to get material taken down, and unfortunately folks aren't careful enough when issuing notices. This interferes with free-speech rights. The Internet can't continue to grow or be a robust forum if users can't share views or larger political commentary without being worried that every little piece of content is going to be removed."
There is also something unique about this case. Universal Music Group is the defendant because it represents some of Prince's publishing rights (his current music label is Sony BMG). A year ago, Universal signed a licensing deal with YouTube that allows users to include the label's music in videos. Under the terms of the agreement, YouTube agreed to remove material from any Universal artist who declines to participate.
According to sources knowledgeable with the agreement, only one artist represented by Universal has elected to opt out of the YouTube deal: Prince.
A representative of Universal declined to comment.
The iconic musician sometimes calls up Universal when he spots unauthorized uses of his work and asks them to send takedown notices, the sources said. The author of such hits as "Purple Rain" and "Little Red Corvette," Prince has hired a company called Web Sheriff to patrol the Web looking for unauthorized copies of his work and then try to get them taken down. The company said it plans to spearhead a legal challenge to YouTube and other Web sites on behalf of Prince and the 1970s disco band, the Village People.
John Giacobbi, Web Sheriff's president, said by phone Tuesday that his company had nothing to do with the Lenz baby clip and declined to comment further.
The lawsuit appears to have a ways to go before the issue is decided. Universal has filed a motion of dismiss and EFF is scheduled to issue their reply in the next few weeks.
YouTube can't guarantee that its new filtering system will catch every case of piracy. But one company says it can help plug the hole.
Web Sheriff, the British company hired by performers such as Prince and the Village People to protect their music from Web piracy, is now branching into a new service on the heels of Monday's announcement by YouTube.
John Giacobbi
(Credit: Web Sheriff)The juggernaut video-sharing site owned by Google rolled out a long-awaited filtering technology that's designed to automatically detect whether a piece of digital video uploaded to the site is pirated or not.
Here's the rub: Copyright owners must first send YouTube copies of the material they want the system to recognize.
In addition, the more degraded the quality of the pirated copy, the greater the chance it will be missed and not flagged as an illicit copy.
John Giacobbi, Web Sheriff's president, said that what hasn't been established is whether YouTube's new system can recognize music playing within a video. This is of special interest to one of Web Sheriff's clients, the Village People. (Giacobbi's site even features a clip of them.)
YouTube was already using technology from a company called Audible Magic, which offers copyright holders a way to police music, video, and computer software that is being reproduced without permission. MySpace has also licensed Audible Magic's product.
The Village People band has threatened YouTube with legal action over a clip that features its music combined with archival footage of Adolf Hitler. The clip, which has been removed from YouTube hundreds of times and keeps getting reposted, shows images of German youth and the Nazi leader.
"There's still a lot of unanswered questions about the system," Giacobbi said. "YouTube has acknowledged that if you change the file's characteristics enough, video may not be filtered. The site will still need to be monitored, and that's what we do."
Web Sheriff says it will, on behalf of its clients, also handle the transferring of video clips as well as turning the clips into digital fingerprints and dealing with YouTube on a day-to-day basis.
(Editor's note: We couldn't immediately reach YouTube for comment on Thursday. This story will be updated if YouTube replies.)
Radiohead is known for such albums as 'The Bends' and 'OK Computer.' The band's contract with EMI expired in 2003.
(Credit: EMI)Editor's note: This blog initially misstated the format of the Prince album giveaway. They were CDs.
Radiohead, the band known for the hit songs "Creep," "Bullet Proof" and "Paranoid Android," announced on its Web site Sunday evening that fans can pay whatever they want for the band's new album, In Rainbows.
In addition to the digital version of In Rainbows, the group is also offering a boxed set of two 12-inch LPs and two CDs with artwork enclosed in a customized sleeve, for about $80. The site says that the merchandise will be shipped by December 3.
The band will release the digital album on October 10 but was taking preorders from its Web site on Monday.
The move is significant because it will be the first time a top act attempts to promote and distribute an album without the backing of a record label. Radiohead's contract with EMI expired in 2003.
Should the album generate respectable sales, it might be the encouragement other bands need to strike out on their own and cut out middlemen record companies. Scores of digital music fans have long claimed that the Internet makes music labels obsolete. They argue that musicians can distribute and promote their albums via the Web.
The move by Radiohead comes after Prince gave away copies of his new album, Planet Earth, through the British newspaper The Mail over the summer.







