The recording industry's legal assault on Internet music piracy has been something of a PR disaster. But going after a mother who posted a video on YouTube of her 18-month-old son dancing to a Prince song may be a new low.

Only 28 people had viewed Stephanie Lenz's 29-second video by June, when the publishing arm of Universal Music, the largest label in the industry, asked YouTube to remove it from the site because of its unauthorized use of the song “Let's Go Crazy.”

Lenz, a Gallitzin, Pa., homemaker, says she posted the video on YouTube so she could share it with friends and family. Her pajama-clad son Holden bobs and weaves to “Let's Go Crazy” as he pushes a walker around the family kitchen.

Four months later, the video –- after being temporarily removed by YouTube -- has racked up more than 272,000 hits and Lenz, represented by the Electronic Frontier Foundation, is pursuing what amounts to a copyright misuse suit against Universal for misrepresenting that her video infringed on its copyright and violating her free speech rights.

The video “does not infringe any copyright owned or administered by Defendants because Lenz’s use of the Prince song 'Let’s Go Crazy' is a self-evident non-infringing fair use,” the complaint, which seeks unspecified damages and declaratory relief, says.

The Digital Millenium Copyright Act provides a “safe harbor” for website operators from copyright infringement claims if they expeditiously remove offending material in response to a “takedown” request by the copyright holder. But the law also says that “Any person who knowingly materially misrepresents ... that material or activity is infringing” shall be liable for any damages incurred by the alleged infringer.

Universal has responded by arguing, among other things, that Lenz cannot show “intentional misrepresentation” based on a claim of self-evident fair use and that the unauthorized use of music on a video-sharing site “can be every bit as infringing as the massive uploading and downloading of copyrighted music that takes place over a peer-to-peer service.”

“Plaintiff posted the video on YouTube for the entire world to see and hear,” the company says in a motion to dismiss. “Plaintiff’s posting has had its desired effect, since the video (including its unauthorized use of 'Let’s Go Crazy') has been played more than 115,000 times, and counting.”

That statement, of course, is absurd since, if not for the publicity generated by Universal's takedown request to YouTube, the “entire world” would never have known of the posting.

Universal also reveals its distorted thinking by repeatedly referring to “Let's Go Crazy” as the “soundtrack” for the video when all Lenz did was film her son as the song -- which is barely audible -- plays on a CD player in the background.

"Copyright abuse can shut down online artists, political analysts, or -- as in this case -- ordinary families who simply want to share snippets of their day-to-day lives," one of Lenz's attorneys said.

By Matthew Heller
10/28/07