Nefarious Plot to Mom’s Dancing Baby Video?


     SAN FRANCISCO (CN) – A Pennsylvania homemaker has two weeks to reveal communications with her lawyers that may show whether the prospect of Internet fame motivated her to sue over a YouTube video of her dancing toddler.



     Universal Music sent a takedown notice to YouTube four months after Stephanie Lenz posted a February 2007 video of her children dancing in the family kitchen. Though the sound quality of the 29-second video is poor, Prince’s “Let’s Go Crazy” can be discerned as a smiling toddler bounces with a Fisher-Price toy.
     YouTube told Lenz about Universal’s allegation of copyright infringement, saying repeated violations would lead to the deletion of her account. After Lenz claimed fair use, the website reposted her video. To date, the video has attracted more than a million views.
     Lenz sued the record label in August 2007 under a provision of the Digital Millennium Copyright Act that states that a copyright holder “who knowingly materially misrepresents” that someone misused its material “shall be liable for any damages … incurred by the alleged infringer.”
     In 2010, U.S. District Judge Jeremy Fogel tossed several defenses that Universal had filed. The label claims that Lenz filed suit for publicity.
     The court has given Universal some leeway in discovery to explore this allegation, finding that Lenz waived attorney-client privilege by talking about the case in Gmail chats and blog comments.
     In one email, Lenz said that her attorneys with the Electronic Frontier Foundation were planning a “publicity blitz and/or a lawsuit against Universal.”
     U.S. Magistrate Judge Patricia Trumbull, who has since retired, ordered Lenz to produce any documents that address her motives for pursuing the action. Though Judge Fogel upheld the order, Universal says Lenz has been less than forthcoming.
     Fogel declined to sanction Lenz Thursday but said she must search further.
     Universal’s interpretation of Trumbull’s order is too broad, but Fogel agreed “that publicity-related documents reflecting plaintiff’s or her counsel’s motives may not be limited to those concerning the initial publicity after the complaint was filed.”
     “As defendants point out, this case has received, and continues to receive, considerable media attention,” Fogel wrote. “Accordingly, to the extent she has not already done so, plaintiff shall conduct a diligent inquiry and reasonable search and produce all publicity-related communications that reflect her or her counsel’s motives for pursuing this litigation, including any such communications pertaining to publicity that occurred later in the litigation.”
     “Defendants’ arguments sometimes depended on very nuanced interpretations of Judge Trumbull’s rulings, and were also, at times, overreaching,” the eight-page decision states. “Defendants have not carried their burden of establishing by clear and convincing evidence that plaintiff’s conduct was not the product of a good faith or reasonable interpretation of Judge Trumbull’s order.”

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