Prince and Universal wrong to take down that 'dancing baby'

Prince: the 1988 Lovesexy Album

In an important decision, and one which will undoubtedly have an impact on how content owners deal with what they consider is infringing content on the likes of YouTube, the Universal Music Group have been told by the U.S. appellate court that they should have considered whether a woman’s 29-second video of her two kids dancing to Prince’s “Let’s Go Crazy” was a fair use before issuing a takedown notice to YouTube.

Cast your minds back to 2007 and you might remember that Prince persuaded Universal, his publisher, to take down a slightly blurry user generated video on YouTube of a toddler dancing to a snippet from “Let’s Go Crazy”. The mum who uploaded the video, Stephanie Lenz, was not amused. Prince had publicly said in a September 2007 statement that he intended to “reclaim his art on the internet” and Lenz was put on notice that her use of Prince’s music violated the U.S. Digital Millennium Copyright Act, and that if she violated it again, she could lose her YouTube account and any videos she’d uploaded to it. Lenz sent a counter notification, and YouTube eventually reinstated the video that year.

Lenz then  sued Universal Music, arguing that entertainment company misrepresented the basis for its takedown request, saying the Universal had clearly not considered fair use, suggesting that her “use of the Prince song ‘Let’s Go Crazy’ is a self-evident non-infringing fair use” and “(T)he Holden (Lenz's son) Dance Video non-commercially transforms the song into partially obscured background music for a family video about a toddler just learning to dance, uses only a small, non substantial portion of the original work, and does not substitute for the work or harm any market for the work”.

In 2012 in the San Jose Federal Court, U.S. District Judge Jeremy Fogel refused to dismiss the case – or hand Lenz a victory – without a trial and that Lenz might persuade a jury in her claims that Universal showed wilful blindness to the possibility of fair use, and that fair use was self-evident. The Judge also considered Universal’s position, saying that equally they could explain their position to a jury and explain that there was no bad faith and Universal “lacked the subjective intent to misrepresent the reasons it asked YouTube to take down the video.”

The case then reached a three-judge panel of the 9th Circuit Court of Appeals: Last month we reported that U.S. Circuit Judge Milan Smith said the concept of fair use is an integral part of the language of the DMCA, roundly criticising the music company saying: “I struggle with how anyone looking at this from Universal’s perspective would doubt that little children playing and dancing around to music by the artist formerly known as Prince could view it as anything other than a fair use.” U.S. Circuit Judge Richard Tallman looked at the arguments put forward by Lenz’s lawyer (Corynne McSherry, of the Electronic Frontier Foundation) who had suggested that under the DMCA, Universal needed to come to a legal conclusion about fair use before it issued a takedown notice. Judge Tallman said the court was struggling with whether the video was fair use – although McSherry’s point was that whether or not the use was fair use – Universal hadn't even considered this before issuing a takedown notice.

The appellate court has now concluded that “the statute [DMCA] requires copyright holders to consider fair use before sending a takedown notification, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law.” The court held that “fair use is not just excused by law, it is wholly authorized by the law.” They called Universal Music’s argument “incorrect” — that fair use was not authorized by the law because it is an affirmative defense that excuses otherwise infringing conduct. 

At the heart of the argument was Section 512(c)(3)(A)(v) of the DMCA which states that, as part of the written notice, a statement must be made by the copyright owner that it 
"has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. " The dispute between the parties was whether fair use is an "authorization" under the law as envisaged by the DMCA.  The Court of Appeals agreed with the district court that the "statute unambiguously contemplates fair use as a use authorized by the law". Annsley Merelle Ward has written an excellent piece on the IPKat on this case which you can find here.

The judges wrote that Lenz may recover nominal damages “due to an unquantifiable harm” from the Universal Music takedown, although those damages cannot be collected on claims of impairment of free speech rights. The total of the damages, including the recovery of expenses and attorneys’ fees, would be determined at a trial.

Corynne McSherry, the attorney at the Electronic Frontier Foundation who represented Lenz, told the WSJ Law Blog that the “ruling sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech.”

Then toddler Holden is nearly 10 years old now.

http://blogs.wsj.com/law/tag/universal-music/

http://www.npr.org/sections/thetwo-way/2015/09/14/440363919/dancing-baby-wins-copyright-case

http://www.musiclawupdates.com/?p=6428

http://the1709blog.blogspot.co.uk/2012/10/is-dancing-baby-takedown-notice-abuse.html

And see the interesting article in the Music Business Journal by Serona Elton here

CopyKat - to the scratching post - and beyond

The CopyKat does love an extra terrestrial copyright conundrum. And indeed whilst man may not have reached Mars quite yet, that has never prevented lawyers at the major record labels from extending their tentacles to reach outside the exosphere - initially by inserting clauses claiming ownership of their artiste's catalogues across the solar system  - then the Galaxy - and now the Universe. Who says the law doesn't keep up with technology? Here it's the other way around!  Now Russia’s Ministry of Economic Development has proposed a new legislative move to protect photographs taken from space - protection by copyright law: “The data from Earth Remote Sensing (ERS) and derivative materials are widely used. They are usually bought for a fee, but there is no clear legal regulation for ERS,” a ministry representative told newspapers. Reports says that Article 1225 of the Civil Code, Protected Results of Intellectual Activity and Means of Identification would be amended to include a new clause protecting “materials and/or data acquired through earth remote sensing.” NASA takes a very different approach saying this "NASA still images; audio files; video; and computer files used in the rendition of 3-dimensional models, such as texture maps and polygon data in any format, generally are not copyrighted. You may use NASA imagery, video, audio, and data files used for the rendition of 3-dimensional models for educational or informational purposes, including photo collections, textbooks, public exhibits, computer graphical simulations and Internet Web pages. This general permission extends to personal Web pages". To that end the illustration I have used is of the Russian MIR Space station - but from a NASA satellite.

In completely unrelated news - but still with the extra-terrestrial theme, singing astronaut Commander Chris Hadfield's recording of David Bowie's classic Major Tom, made on the International Space Station, has been removed from YouTube as his agreed (earthbound) term of use from Bowie has now expired with Hadfield saying:  "It has been a year since my son and I created and released the Space Oddity video. We have been amazed and delighted that so many people enjoyed it—and maybe saw what spaceflight can really be like. It helped show that humans have left Earth, and that the Space Station is a new stage, for not just science and exploration, but for our art and music too. With exploration comes insight—with perspective comes self-realization.We had permission from David Bowie’s people to post the video on YouTube for a year, and that year is up. We are working on renewing the license for it, but as there are no guarantees when it comes to videos shot in space, we thought you might want to have one last look before we take it down. Thanks for everything. You’ve all been incredible throughout.". More here. 

The UK's Police Intellectual Property Crime Unit (PIPCU) has had infamous sharing website Torrentz.eu's internet domain suspended. Torrentz.eu was already one of 21 websites blocked by UK ISPs last October after a court order directed them to put up a "virtual wall".

In the US, the Center for Copyright Information (CCI) has released its first report on the Copyright Alert System (CAS), the voluntary collaboration between entertainment and technology companies aimed at reducing copyright infringement. For the first time since the system's launch, specific information about the size of the program has been made available: Specifically, the report showed that 1.3 million Alerts were sent out in the initial 10 months of the program, most in the initial educational phases. 265 people challenged the Alerts under an arbitration system and 18 percent of those (47 people) were successful, mostly by showing that someone else had used their account - with no findings of false positives in which the content owner had misidentified the account.  Only three percent, or 37,456 of the accounts, reached level 6, which results in reduced internet speed. 
CCI also noted that the CAS is expected to double in size in the second year of operation, and CCI will begin an online awareness campaign to increase public awareness of the system. Jill Lesser, Executive Director of CCI, said : "We are encouraged by the initial data from the Copyright Alert System's first 10 months suggesting that the program has the potential to move the needle in deterring copyright infringement. Our initial research into consumer attitudes – along with what we have seen in our own data – shows that consumers do respond to this kind of educational system that alerts them to infringing activity on their account and helps them find the content they want easily and legally."  The majority of peer-to-peer copyright infringement is fuelled by a small group of younger, predominately male digital consumers”. More on Digital Journal. 

And there seems ti be LOTS of lobbying going on in the U.S. music industry right now.  A new group  formed from the Nashville music industry hopes to be able to influence ongoing debate on the future role and reform of copyright law. The group, called Interested Parties Advancing Copyright (IPAC), consists of about 50 independent publishers, administrators, business managers and entertainment attorneys.

Elsewhere in the USA, A2IM, the organisation that represents indie record labels have criticised Sony and Universal Music Group in "the fight over digital dollars". The American Association of Independent Music, whose artists include Mumford & Sons, Taylor Swift and Adele, argues that Universal and Sony are in effect a de facto “duopoly”— and use their dominance to grab a disproportionate share of streaming music royalties. Streaming services just have to deal with Sony and UMG, who control well over 50% of the recorded music sector (and yes - EU and US regulators let that happen!). The group, which represents around 325 indie labels in the US, has been lobbying lawmakers to take a fresh look at music licensing and outlined its issues in a filing submitted to the federal Copyright Office: The New York Post say that A2IM contends that the streaming music business "is essentially a zero-sum game: The music majors use their distribution muscle to extract the lion’s share of dollars from services such as Spotify and Pandora, leaving the indie labels to settle for whatever is left".

SoundExchange is making a push to change how pre-1972 recordings are treated is the U.S, The Washington D.C. based collection society for digital performance royalties has launched a multi-pronged campaign called Project72 - aimed at changing the federal law that excludes pre-1972 sound recordings from coverage under statutory licenses used by many digital music services. The campaign features a microsite and an advertisement -  a call to digital radio services to “pay for all the music they play” in the form of an open letter from over 70 artists including B.B. King, the Supremes, members of Steely Dan, the Beach Boys, Roseanne Cash, Martha Reeves, Cyndi Lauper and Al Green. the RESPECT Act was introduced by Rep. John Conyers (D-MI), ranking member of the House Judiciary Committee, and Rep. George Holding (R-NC). The bill would place pre-1972 sound recordings under federal law. Conyers stated the bill would give "a fair shake" to legendary artists and their lesser-known backing musicians. SoundExchange President and CEO Mike Huppe told Billboard the issue with pre-1972 royalties amounted to "a real and urgent problem that's happening right now."

And the Recording Industry Association of America has responded to the US Copyright Office's call for comments on a "Music Licensing Study: Notice and Request for Public Comment," by explaining why terrestrial radio should pay more in royalty payments.
Setting the current US system in a historical context (in particular the fact that terrestrial radio stations are exempt from paying royalties for broadcasting sound recordings) the RIAA says "We propose to replace the current overlapping musical work licensing systems with a single, simple and efficient system that incorporates marketplace royalty payments. As described below, such a system would have many potential advantages, including: (1) market rates for publishers and songwriters; (2) more consumer choice through easier funding and development of innovative services; (3) more revenue for services and higher royalties for creators due to savings from simplified licensing procedures; (4) improved accuracy of payments and transparency for publishers and songwriters; and (5) viability for ASCAP and BMI, and the revenue streams they administer."

And on the matter of who gets paid what from any revenues from downloads ..... Universal have now responded to the multiple lawsuits it is facing from its own artists over its controversial policy of treating a download (or even streaming income) as a 'sale' rather than licensing income - attracting the far lower 'per unit' royalty from a sale. The Hollywood Reporter explains that the new motions to dismiss from UMG  "stems from a 2010 appellate ruling in F.B.T. Productions v. Aftermath that suggested that record labels should be treating digital download income off of venues like Apple's iTunes as "licenses" rather than "sales." The difference could mean a lot of money because under typical licensing or leasing provisions of artist-label contracts, about 50 percent of collected revenue gets handed over to artists. Under sales provisions, it's usually not more than 15 percent - if they are lucky." UMG says that the F.B.T precedent is wrong and that a sale on iTunes should be like any other sale of physical product - and that in fact when the this all started UMG were generous to artistes as it waived its 'packaging deduction' for download sales - and that many artists and their representative hailed the new royalties model - albeit one based on the old - as preferable to wholesale piracy. A few artist attorneys are said to have brought forward the argument that these downloads were "licenses," an interpretation which Universal Music rejected. Then came the F.B.T. decision, and subsequently "the firestorm of litigation" with Chuck D. of Public Enemy, Rick James (by way of trust), Dave Mason of Traffic, Whitesnake, Andres Titus of Black Sheep, Ron Tyson of The Temptations and Bo Donaldson all still ready to challenge Universal Music's accounting. UMG have put up numerous other arguments rejecting the claims:  that lawsuits alleging that consumers were hurt by royalty arrangements are invalid because consumers aren't aware of these dealings; that some of the artists suing under Californian law had contracts that were governed by New York law; that 1970s singer Bo Donaldson couldn't sue because of an agreement with his former bandmates that majority participation was required to litigate; and Ron Tyson of The Temptations wasn't party to the crucial contracts because he didn't join the group until 1983. The the article on the Hollywood Reporter is well worth the read. 

And finally, UK Music Industry think tank Music 4.5 is hosting a seminar to examine the future of Intellectual Property (IP) and music licensing in the growing digital marketplace. The event, from 14.00 - 18.00 on the 25th June 2014 will bring together thought leaders, including Raoul Chatterjee (7Digital), Will Page (Spotify), Peter Bradbury (Sky) and Kim Bayley (ERA), to discuss current IP issues facing the music and music technology industries. The seminar will be hosted against a backdrop of change for IP and music licensing, as the European Commission examines the wider EU copyright. More here.

How will South Korea Implement fair use?

In 2012, the Korean Copyright Act was amended to include the general provision of a fair use. The newly introduced article 35-3 (Fair Use of Copyrighted Material)  states that 

“the copyrighted work may be used, among other things, for reporting, criticism, education, and research.”  

Article 35-3.2 lists factors to be used to determine if a use is fair (which seem similar to the fair use factors listed in section 107 of the U.S. Copyright Act): 

"In determining whether art. 35-3(1) above applies to a use of copyrighted work, the following factors must be considered: the purpose and character of the use, including whether such use is of a commercial nature or is of a non profit nature; the type or purpose of the copyrighted work; the amount and importance of the portion used in relation to the copyrighted work as a whole; the effect of the use of the copyrighted work upon the current market or the current value of the copyrighted work or on the potential market or the potential value of the copyrighted work."

But as a new provision there are, of course, no precedents to guide those wanting to rely on fair use in Korea - as yet - but there have been a number of decisions  concerning Article 28 of Korean Copyright Act (Quotations from Work Made Public) which has been used to recognise exceptions and limitations to Copyright. By way of reference, Article 28 provides:

"It shall be permissible to make quotations from a work already made public; provided that they are within a reasonable limit for news reporting, criticism, education, and research, etc. and compatible with fair practices."

Two leading Korean cases concerning Article 28 could well have an impact on the futire of  fair use. The first concerns a search engine that provided thumbnail images. In that case, The Supreme Court of Korea [Supreme Court of Korea, Decision 2005 Do 7793 (2006)] held that the use of the images were within the meaning of "fair practices" pursuant to Article 28.  The Court found that, to determine whether a particular use is compatible with fair practices, courts should consider various factors including the purpose of the use, the type of the copyrighted work, the content and the amount of the portion used, and whether the copyrighted work could replace the demand of the original work

The second case concerns user generated content (“UGC”). Here the plaintiff uploaded a recording of his 5 years old daughter singing and dancing of the popular Korean song ‘Crazy,’ by Son Dam Bi, to his blog.  The internet blog provider, the defendant in the case, blocked the Plaintiff's blog at the request of the Music Copyright Association of Korea, a second defendant.  The court [Seoul Southern District Court, Decision 2009 GaHap 18800 (2010)] held that the plaintiff should be allowed to upload the content pursuant to Article 28, and citing an earlier Supreme Court decision [Supreme Court of Korea, Decision 97 Da 34839 (1998)] the District Court found that the purpose of quotation cannot be limited to news reporting, criticism, education, and research. 

The case somewhat reminded me of the 2007  ''Prince v Dancing Baby" case in the USA where Universal Music received much criticism for attempting to sue a mother who uploaded a clip of her baby dancing to Prince's 'Lets Go Crazy' onto YouTube. UMC issued a takedown notice for infringement of their sound recording rights, but in 2010 a District Court granted partial summary judgment to the mother allowing fair use -saying that UMC should have considered this before issuing a takedown notice, and would have to show bad faith to prevail, 

The Korean precedents perhaps indicate that the courts in Korea might well be prepared to adopt a flexible approach to the new exceptions to copyright - hopefully moulding the new legislation into a workable framework for the digital age.

Please take a look at the excellent article by Jaewoo Cho  InfoJustice website here http://infojustice.org/archives/28561 

http://en.wikipedia.org/wiki/Lenz_v._Universal_Music_Corp.

Is Universal Publishing’s exit from collective licensing a step backwards for music industry ‘one stop’ aspirations?

The one question I always get asked by young entrepreneurs setting out to create legitimate digital offerings in the digital music space is where do they go to get licences to use music, and make payments ? Well, there is no easy answer. In 2012 Daniel Ek, the creator of Spotify, pointed out that the European Union alone had 27 different  music collection societies for songs – and a similar number for sound recordings as well as the the four major labels dealing directly  for digital rights: Ek said the service’s U.S. debut was then still a few months off as Spotify worked through a maze of licensing issues with publishers, labels and collection societies, saying that to create a new above-board music platform in America under current copyright law required big reserves of money, lawyers and perseverance. And that’s just America! At the time Johanna Shelton, senior policy counsel for Google Inc said “The Internet is a simple distribution platform … [but] we’ve made things unnecessarily complex,” noting that calls for a music rights organisation, a one-stop shop to deal with all licensing issues, had gone unheeded. But we all now know that in default of legitimate services ……. piracy fills the void -  and then no-one gets paid.

Martin Mills, the much respected boss of independent Beggars group whose labels include XL, 4AD and Rough Trade and home to Adele, The National, The Prodigy, Sigur Ros, Jack White and Vampire Weekend amongst others, recently admitted that rights owners - especially the bigger ones - had made various mistakes in the way they licence online content services in the last fifteen years, and that the music rights industry still needed to work harder on developing better cross-territory licences. That said, Mills told an audience at the MIDEM convention "I don't believe that the present day music industry is a reluctant licensor" adding "we do not need to have control of our rights taken away from us, to be forced to licence that in which we have invested at uneconomic prices, to simply allow huge tech firms to make even huger profits. Yes, music companies needed tech companies just like tech companies need content, but "as someone who invests in music - and when I looked at the numbers a few years ago we had written off £25 million in unrecouped advances to artists over the years - it makes me fume when politicians cosy up to the big techs at our cost and spout philosophically about the needs of the modern world, about us being dinosaurs, and about music's irresistible urge to be liberated and free".

European digital commissioner Neelie Kroes has been a staunch advocate on opening up digital licensing and said last year “Too many barriers still block the free flow of online services and entertainment across national borders [in Europe]. The Digital Agenda will update EU Single Market rules for the digital era” saying her aims were to boost the music download business, establish a single area for online payments, and further protect EU consumers in cyberspace. Kroes called on content owners of Europe to construct a "simple, consumer-friendly legal framework" for making digital content available across the Union saying the traditional content industries had not developed their licensing models fast enough to cope with the new demands of internet services saying "Digitisation has fundamentally changed content industries, but licensing models simply have not kept up with this. National licensing can create a series of Berlin cultural walls. The price, both in pounds and frustration, is all too real, as creators are stifled and consumers are left empty-handed. It is time for this dysfunction to end. We need a simple, consumer-friendly legal framework for making digital content available across borders in the EU".

Mills took issue with some of Kroes' comments, saying "All in life needs balance and vision, and the likes of Neelie Kroes miss that point. When businesses make money out of music, music rights owners must have the right to a fair share of that income". Noting also that the music industry pumps a lot more into the tax system than many of the tech giants putting pressure on rights owners, Mills concluded: "I'm incensed about the discrimination and the lack of understanding with which those like us who spend their lives creating art that brings people joy, can get treated by those in power. I very much hope that we can all be a part of changing that, because unless we do, the ladder we climbed will not be there for those who follow us".

I have recently blogged on the ongoing progress to establish a Global Repertoire Database for music (Global Repertoire Database Tunes Up): In Europe SACEM (France), SGAE (Spain) and SIAE (Italy) have joined forces to create ‘Armonia’, the first pan-European hub for licensing of online services, gathering together more than 5.5m works (the rights of which are managed by the three collecting societies), and addresses online exploitation and/or mobile uses over a territory of 35 countries. Other commercial developments include the collaboration between the PRS (UK) and STIM (Sweden) with a jointly-owned commercial service centre for back room operations; Publisher  EMI has joined up with GEMA (Germany) and PRS and formed a ‘one-stop shop’ for the licensing of online rights  and the UK is in the process of working out how a Copyright Hub – the Digital Copyright Exchange – might work - the place where any copyright owner can choose to register works, the associated rights to those works, permitted uses and licences granted and the place for potential licensees to go for easy to use, transparent, low transaction cost copyright licensing – streamlining copyright licensing and facilitating the licensing of copyrights on a 'one stop shop' basis with a registry of copyright data and copyright owners, and potentially with licensing mechanisms.

But conversely comes the news that Universal Music Publishing has confirmed its intention to withdraw it's digital rights from US performance rights organisations ASCAP and BMI. CEO Zach Horowitz confirmed the planned move in a statement to Billboard, citing an inability from both societies to achieve market rates with digital services; the move will follow Sony/ATV/EMI's lead, and will allow UMPG do direct deals with streaming services, with Horowitz saying "In order to ensure that our songwriters are fairly compensated, we believe the best approach is for us to negotiate directly with these services”. Recently Sony/ATV (now controlling the EMI catalogue) struck a direct deal with Pandora which seems to  secure the Sony publisher a bigger cut of the royalties available for song rights from the streaming company. Billboard sources also report that BMG Chrysalis has also negotiated the option to do the same but is yet to decide if it will use a direct strategy, a a move away from blanket licence deals negotiated by the collecting societies.

So, if the bigger rights owners, who generally have more to gain from direct deals, move away from collective licensing, where does that leave the concept of a ‘one stop shop’?  If a new digital music business has to go to all of the major publishers in the USA or elsewhere – and all of the major record labels - that means even more ‘stops’ than when Ek was trying to set up Spotify. And surely this must be a huge deterrent  to legitimate business models? That said,  one can see the attraction to the big rights owners to go it alone - higher royalty payments and upfront advances,  or even shareholdings, and also labels, publishers, songwriters and artists can retain vetoes over certain tracks - and have a more hands on approach to licensing.  And indeed, whilst it may be only ‘one’ company out of many that need to be cleared – that label or publisher may be able to offer a global licence – a near must in most digital business plans.

The whole issue is complicated further by the fact that no-one seems quite sure how advances from (or shareholdings in) digital operators are treated.  For example how do Universal and Sony account for their shareholding in Spotify to their recording artistes? An important question if you are a recording artiste or songwriter!

But we clearly have two way tension (at least): Universal’s move reveals the wish of content owners to manage their own digital rights – possibly on a global scale – but this should be balanced against the clear advantage of collective licensing and the fact without global one stop licensing the music industry runs the risk of promoting piracy through over complicating the legitimate market. Do we really want to exclude innovative  but cash-strapped start-ups who could be blocked from the market? Do we want to marginalise smaller rights owners – who are further down the food chain from the major music publishers and recorded music groups? But as Martin Mills rightly says, it seems equally wrong to force rights owners to “licence that in which we have invested at uneconomic prices, to simply allow huge tech firms to make even huger profits”. A conundrum? As ever, maybe some of our 1709 community may have a view!

And see the Max Planck Institute's comments on the draft EU Directive on collective rights management here  http://ipkitten.blogspot.co.uk/2013/02/max-planck-comments-on-draft-directive.html

http://www.billboard.com/biz/articles/news/1533683/martin-mills-call-to-action-his-billboard-midem-speech-in-full

http://the1709blog.blogspot.co.uk/2012/11/hoopers-vision-unfolds.html

http://www.xlrecordings.com/news

http://www.musicweek.com/news/read/universal-music-publishing-to-leave-ascap-bmi/053431

Or my heresy blog - suggesting that just ONE single global collection society is the way forward  here http://the1709blog.blogspot.co.uk/2012/05/is-it-time-for-super-society.html

Is dancing baby takedown notice an abuse of the DCMA?

Tomorrow the Federal Court of California will be asked to decide whether a takedown notice issued by Universal Music in respect of a home video posted on You Tube is an abuse of the Digital Millennium Copyright Act.

The video is of a toddler dancing to "Let's Go Crazy", by Prince. In 2007, Universal Music claimed that this particular dancing baby video (and there are many many dancing baby videos on YouTube) infringed Universal's rights in "Let's Go Crazy".  Stephanie Lenz, the baby's mother, responded saying that the video was a fair use of the song. She asked for declaratory judgment that her home video did not infringe any Universal copyright, and also claimed damages and injunctive relief restraining Universal from bringing further copyright claims in connection with the video. In 2008 the court held that copyright holders cannot order the removal of an online file without first determining whether the posting reflects fair use of the material

The Electronic Frontier Foundation (EFF), an organisation which seeks to protect online free speech, will represent Stephanie Lenz in court tomorrow. It will ask the court to grant Lenz's motion for summary judgment and rule that Universal's takedown was improper and an abuse of the DCMA.

EFF has said that "Parents are allowed to document and share moments of their children's lives on a forum like YouTube, and they shouldn't have to worry if those moments happen to include some background music."

The pleadings and court orders so far can be found on EFF's website.