Some headlines write themselves. Take a look at the roughly six month old video of cute little Holden Lenz below and see if you can find what’s dramatically wrong here:

[youtube]http://www.youtube.com/watch?v=N1KfJHFWlhQ[/youtube]

Found it? That’s right, it’s inane, amateurish and not that exciting except for the older kid who nearly takes down the toddler with a speed move to the outside. For these reasons (and, presumably the Prince song that’s almost audible/identifiable in the background) Universal Music Publishing Group presented a take down notice, which Google prop YouTube promptly observed. This made some news at the time because video auteur Stephanie Lenz resisted sharing writing credit and and profits made from the video. Also, she sued Universal for misuse of the Digital Millennium Copyright Act. (Is there any use that isn’t misuse other than the wiping of one’s rear end? Maybe I’ll save that topic for next week.)

Normally this kind of man-bites-dog story is a cute, end of the broadcast news story, but here’s where it gets a little more interesting. The case got dismissed earlier this month by the judge, Jeremy Fogel, who claimed “there must be a showing of a knowing misrepresentation on the part of the copyright owner” without disagreeing with any other part of her argument. Aside from the cute alliteration, this calls into question the responsibilities of copyright holders intending to fight what they think is infringement.

If this stance is correct, the less a copyright holder knows about the potential abuse, the better. A situation where a home movie is taken down after 28 people see it on suspicion because the clip is titled “Let’s Go Crazy #1″ is far easier to justify than a well known use of a song that rides the border of fair use. I don’t want to get all “what is this world coming to” on you, but the extension of this logic creates a precedent that is in direct opposition to what I have come to believe fair use — and by extension, copyright law — is all about.

By encouraging blanket squelching of creative expression before anyone knows it exists, this ruling could lead to a world where any work posted on the Internet has a better chance of being the subject of complaint than not. I’ve got “Let’s Go Crazy” in the headline of this story. Why wouldn’t Universal contact our host to kill it before you read it? Better safe than sorry, and God forbid more than 28 people read it and they can’t claim ignorance to the actual content.

It seems the judge himself is aware of this implication, as he has invited the plaintiff and the Electronic Frontier Foundation (who is representing her in this case) to re-argue the point, which they did ten days ago.

This case is of particular interest to us music bloggers because of the ever-present threat of the “Web Sheriff.” Web Sheriff protects the interests of copyright holders online by searching for unapproved use of copyrighted materials. So far, not so bad. The problem is that the system isn’t perfect and the Sheriff occasionally shuts down use of the wrong materials or kills approved and/or legal uses of material. It’s an “oops” on their end, but it could make a far larger impact on the people who posted the material.

Your feelings on this kind of collateral damage in the name of protecting artists is pulled into stark relief on this kind of case. Is Lenz just a trouble maker (we know the EEF is just a bunch of trouble makers, but they’re on our side)? Should we let her case go to protect Prince against those people who would post a video that is nothing more than a still shot of an album cover while his music plays in the background? In the end, it may come down the artfulness of the decider in setting a precedent that doesn’t subtract an inordinate amount from the rights of either side. We’re rooting for you Judge, Fogel, but we’re watching you, too.

Prince – “Sign ‘O’ The Times” [mp3]

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Last 5 posts by Greg Wind

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