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Dancing tot's mom faces setback in YouTube-Prince case

Federal judge in San Jose, Calif., dismisses lawsuit brought by the Electronic Frontier Foundation against Universal Music that alleges copyright misuse, but the case isn't exactly dead yet.

The Pennsylvania mother who sued Universal Music over a YouTube video of her toddler dancing to a Prince song isn't having much luck in court.

Last October, we wrote about the suit that Stephanie Lenz filed in federal court in San Jose claiming the record label had abused the Digital Millennium Copyright Act by sending YouTube a notice of copyright infringement. Three lawyers from the Electronic Frontier Foundation are representing Lenz.

Lenz's 30-second video shows her son Holden, then 13 months old, dancing in the family's kitchen with the Prince song "Let's Go Crazy" partially audible in the background (Universal represents some of Prince's publishing rights). It led to a DMCA takedown notice from Universal.

On April 8, U.S. District Judge Jeremy Fogel threw out Lenz's lawsuit against Universal, saying the argument that Universal was misusing its copyright was weak--and that the case wasn't really akin to the Diebold wrongful-use-of-the-DMCA lawsuit. Here's what Fogel wrote:

Diebold is distinguishable based on its facts; although it included a takedown of hundreds of emails, the defendant failed to identify any specific emails containing copyrighted content, and it appeared to acknowledge that at least some of the emails were subject to the fair use doctrine. Here, it is undisputed that the song "Let's Go Crazy" is copyrighted, and Universal does not concede that the posting is a fair use... There must be a showing of a knowing misrepresentation on the part of the copyright owner. Lenz fails to allege facts from which such a misrepresentation may be inferred. Lenz also fails to allege why her use of "Let's Go Crazy" was a "self-evident" fair use. Accordingly, Lenz's first claim will be dismissed, with leave to amend.

Fogel also rejected the other two arguments. EFF had asked for a ruling that the 30-second snippet did not violate copyright law; Fogel concluded it was unnecessary because "Universal has indicated it had and presently has no intention of ever asserting an infringement action directly against Lenz based on the 'Let's Go Crazy' video."

The video, by the way, is back up on YouTube.

But Fogel did say that EFF could try to make its misuse-of-copyright argument a second time. EFF did just that by filing a second complaint (PDF) on April 18. It says, in part:

Defendants had actual subjective knowledge of the contents of the Holden Dance Video and that it did not infringe any Universal copyrights on the date they sent YouTube the takedown notice regarding the Holden Dance Video... Defendants should have known, if they had acted with reasonable care or diligence, or would have no substantial doubt had they been acting in good faith, that the Holden Dance Video did not infringe any Universal copyrights on the date they sent YouTube their complaint under the DMCA.

The case is noteworthy because so few lawsuits over DMCA misuse have been filed. Diebold, which sent dozens of cease-and-desist letters after internal leaked documents appeared online, appeared before Judge Fogel--and ended up writing a check to EFF for $125,000.