Tech Issue

On April 18 the EFF filed an amended complaint [PDF] after Stephanie Lenz’s case against Universal was dismissed. She is suing them after they sent a DMCA takedown notice to YouTube where she had put up a home video of her son dancing to a prince song.

First of all it is disturbing that Universal would even consider the performance of a song in the background of a personal home video as constituting copyright infringement. Apparently Lenz did not even begin recording until her son had already begun dancing, towards the end of the song. In any case, it is simply unacceptable that anyone would deny Lenz the right so share such a precious moment in the life of her son just because it happens to contain a low quality snippet of some song.

I’ll tell you what, if I ever record my child learning to walk, or dance, or talk, and some copyrighted song happens to be playing in the background, that will never prevent me from sharing the video with whoever I please. No copyright bully will ever get away with telling me that I am not allowed to share such a precious moment with the whole world if I so choose.

If the EFF is not successful in their suit against Universal for abuse of the DMCA, the effects will be devastating to freedom of speech. Rights holders would be able to demand the takedown of any kind of video in which special care is not taken to avoid recording the performance of copyrighted music, which, depending on the environment, can be difficult or even impossible.

Universal also made another disturbing claim regarding fair use rights. They insisted that there are no “self-evident” fair use claims. In fact, they basically say that no use is truly a fair use until after someone is dragged into court, “affirmatively pleads it and then proves it after an intense equitable balancing of multiple factors.” The truth is that the exercise of fair use rights are not supposed to require the permission of rights holders. This, unfortunately, has not prevented Universal from basically arguing that any exercise of fair use rights can ultimately require their permission, because they can drag you into court where you must then affirmatively defend your rights against them.

From the EFF’s complaint:

On or about February 7, 2007, Lenz’s children were playing in the family’s kitchen when Holden (then 13 months old) began dancing to the Prince song “Let’s Go Crazy,” which was playing in the background on the Lenz family CD player. Zoe and Holden had recently heard Prince perform on television during the Super Bowl halftime show. Lenz used her digital camera to create a 29-second video recording of the children’s activities, which consisted primarily of Holden’s dance performance.

…

Thus, the purpose and character of the video was for Ms. Lenz to amuse her family and friends with her young child’s nascent dancing ability. This was non-commercial and transformative, as it made a use of the work that was distinct and separate from its original context and added additional creative elements, such as Holden’s dancing. Moreover, the amount of the song taken was approximately 20 seconds of a 3 1/2 minute song – the necessary background of the almost equally brief video—and the content of the Holden Dance Video did not and could not substitute for the original song or inflict any harm to the market for the original song.

Resource: http://techissues.org/