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Strange turn in dancing baby vs. Prince case

Mother who posted video to YouTube of her children dancing to Prince song and later sued Universal Music for trying to remove it is accused of violating court order, loses attorney-client privileges.

The woman who posted a video of her children dancing to the Prince tune "Let's Go Crazy," and waged a three-year court fight with a top record company over the clip, has been accused of violating a court order and could be held in contempt of court.

Pennsylvania resident Stephanie Lenz generated a lot of headlines in 2007 after she claimed in a lawsuit that Universal and music star Prince knowingly made a false copyright claim about the dancing-baby video she posted to YouTube. Now she finds herself with a court-order hanging over her head that requires her to turn over sensitive information about discussions she had with her lawyers.

Lenz's copyright story began in 2007. YouTube removed her 30-second clip from the video-sharing site after receiving a take-down notice from Universal and Prince, who claimed the snippet violated their copyrights. To qualify for the Digital Millennium Copyright Act's safe harbor provision, service providers must remove pirated material when notified by copyright owners. Then, Lenz challenged Universal's claims, and the clip, titled "Let's Go Crazy #1," was reposted a month later to YouTube, where it has remained ever since. The clip has been viewed more than a million times and Universal has never made another attempt to take it down.

Takedown notices
The story might have ended there but Lenz decided, apparently with input from the Electronic Frontier Foundation (EFF), an advocacy group for Internet users and tech companies, to file a lawsuit against Universal. She accused the label, home to U2, Lady Gaga, and Eminem, of knowingly filing a false claim and undermining her First Amendment rights.

"I don't care that YouTube doesn't want to host [my video]. Not like I'm paying them."
--Stephanie Lenz, writing to an associate

At the time that Lenz filed her suit, take-down notices were a hot issue. Viacom, parent company of MTV and Comedy Central, had demanded thousands of clips containing its content be removed from YouTube in preparation for filing a $1 billion copyright suit against the service. But there were also reports that Viacom and other copyright owners had wrongly sent take-down requests for videos that featured none of their content.

EFF warned YouTube users that just because someone made copyright allegations, that didn't mean they were true. EFF attorney Corynne McSherry told CNET in October 2007 that copyright owners were often careless when taking down material and wrongly removing clips interfered with free speech.

Lenz, with EFF lawyers at her side, gave numerous interviews to the media about the case. Lenz appeared to make the perfect spokesperson, but there are questions about whether she understood the limitations to speaking publicly about her suit.

Attorney-client privilege
Last fall, the case appeared to be winding towards a conclusion when something rare occurred. As both sides were preparing to request summary judgment--when lawyers try to persuade the court that there's enough evidence to rule in their favor--Universal instead argued that Lenz had waived her attorney-client privileges.

The record label showed the court how Lenz "disclosed repeatedly--in e-mails to friends and family, Gmail chats, and on her personal blog the substance of what she and her lawyers have discussed." Universal suggested in court documents that Lenz's writings reveal she suffered no injuries as a result of her video being briefly removed from YouTube. Universal argues that she was nudged into filing the suit by EFF, which believed the Lenz case "would make an excellent vehicle for trying to change the legal standards and public debate."

"I don't care that YouTube doesn't want to host it [my video]," Lenz wrote to one associate, according to court documents. "Not like I'm paying them" and another missive included this passage "EFF is pretty well salivating over getting their teeth into UMG yet again."

The attorney-client privilege is a legal concept designed to safeguard the confidentiality of communications, but clients can waive the privilege by, for example, disclosing them publicly. The reason this isn't allowed is to protect fairness. If parties in a case were allowed to protect some attorney-client information but not all, they might be tempted to disclose only information that was beneficial to them.

In October, the court ruled that Lenz had waived her privilege in specific areas. Lenz was ordered to hand over documents related to discussions between her and her lawyers regarding the reasons she filed her suit and information about her legal strategies.

In the months since, Lenz has turned over 80 documents. That's not enough for Universal's lawyers, who are skeptical that a 3-year-old case has generated so few documents. They asked the court to find Lenz in contempt and order her attorneys to conduct a thorough review of their files. The judge has yet to rule on the issue.

"I think Universal's accusations are absurd," McSherry told CNET yesterday. "There weren't that many documents to produce. We talked to the client by phone because that's what everybody does. Universal has a very expansive view of the judge's order. They were given an inch and now they're trying to take a mile...We really want to move ahead to summary judgment and move on."

As for whether Lenz was made aware of the rules regarding attorney-client privilege, McSherry said "I'm not getting into what I told her."