Toddler + Prince song + YouTube = Copyright suit

Speaking of re-mix culture, try this from SiliconValley:

" For Pennsylvania mom Stephanie Lenz, a closely watched copyright showdown in San Jose federal court is a simple matter of standing up to powerful music moguls and petulant pop stars.

"I figure I have nothing to lose," Lenz said Friday in a telephone interview with the Mercury News. "The music companies are just going to keep doing this to people. I think it's my responsibility to stand up to them and say, 'That's enough.' "

Lenz, whose case reached a critical stage Friday, finds herself at the heart of an epic copyright fight over Universal Music's attempt to force her to take down a YouTube video of her toddler learning to walk with the Prince song "Let's Go Crazy" blaring in the background."

The EFF is backing Ms Lenz in the hope of getting the first formal declaration from a court to the effect that this kind of mashup is well within the bounds of fair use and protected by the first amendment to the US constitution. Have a look at the video for yourself on YouTube - frankly it is pretty difficult to make out who the artist was or what song they were singing. Any rational actor viewing this on the net would be idiotic to follow it up by tracking down the family and sending them a cease and desist letter. But the industrial scale of the music industry's 'takedown anything remotely suspicious' operation doesn't allow for rational pre-threat assessment. So lots of innocents get caught in the Net and unnecessary litigation results. Presumably there are executives in Universal who are wishing this lawsuit would just quietly go away.

Update: See thoughtful comment from Alfred Yen at Madison.net

Update 2: More interesting commentary from Sherwin Siy at Public Knowledge. Universal are claiming in their defence that fair use is infringing use. Siy says:

"It sounds paradoxical, but that’s the argument made by Universal in its defense of an overzealous DMCA takedown notice sent to Stephanie Lenz. That notice was sent to Lenz after she posted a YouTube video of her then-13 month-old son dancing in her kitchen to the barely-intelligible strains of Prince. Give me a minute to walk through the background of what caused Universal to make this twisted argument.Lenz, represented by EFF, has sued Universal for violating 17 USC 512(f), which penalizes abuses of the DMCA’s notice-and-takedown procedures...

Thus, if Lenz wasn’t infringing copyright, and Universal knew that and sent the notice anyway, it’s liable.

And it’s hard to see how Lenz’s use isn’t fair. It’s a non-commercial, 29-second work having no effect on the market for Prince’s work. A first glance should tell anyone with some copyright experience that this is fair use; a first glance should tell anyone at all that this isn’t worth sending a takedown notice.

But Universal is trying several arguments to get out of the penalty. For one thing, it claims that the misrepresentation wasn’t “knowing.” For another, it says that it wasn’t a misrepresentation to say that a fair use was infringing. For that to be true, a fair use must be an infringing use.

This is, to say the least, weird."