The Home Video Prince Doesn't Want You to See
Pa. Mom Fights Back With Lawsuit Against Music Company
By JIM AVILA, CHRIS FRANCESCANI and MARY HARRIS
ABC News Law & Justice Unit

Oct. 26, 2007 —

A bouncing YouTube baby has be-bopped his way right into the legal cross-hairs of the pop star Prince, sparking a lawsuit that could test the boundaries of U.S. copyright law.

Holden Lenz, 18 months old, is the pajama-clad star of a 29-second home movie shot by his mother in the family's rural Pennsylvania kitchen and posted last February on the popular video site YouTube.

In the video, the child is seen bouncing and swaying for the camera, as, faintly, the Prince hit "Let's Go Crazy" plays on a CD player in the background.

Twenty eight people, mostly friends and family, had viewed the YouTube video by June, when mom Stephanie Lenz said she received an e-mail from YouTube informing her that her video had been removed from the site at the request of Universal Music Publishing Group, the recording industry's largest label, and warning her that future copyright infringements on her part could force the Web site to cancel her account.

'Frightened, Then Angry'

"All of my [YouTube] videos are home videos, so I thought it was some kind of scam,'' Lenz told ABC News' Law & Justice Unit. When she realized YouTube had actually taken her video down, she said she was shocked.

"At first it frightened me, because I saw who had filed'' the takedown notice, she said.

"It was Universal Music Publishing Group, and I was afraid that ... they might come after me. ... And the more afraid I got, the angrier I got. ... I was afraid that the recording industry might come after me the way they've come after other people for downloading music or file sharing.

"I thought even though I didn't do anything wrong that they might want to file some kind of suit against me, take my house, come after me.

"And I didn't like feeling afraid,'' she continued. "I didn't like feeling that I could get in trouble for something as simple as posting a home video for my friends and family to see."

Lenz filed a "counter-notice" with YouTube, and the Web site put her video back up about six weeks later.

What Constitutes a Ripoff of an Artist's Work?

But Lenz was angry, and she said she wasn't ready to let it go.

She contacted a leading cyber rights legal organization called the Electronic Frontier Foundation, and filed a civil lawsuit against the music publisher, claiming they were abusing the Digital Millennium Copyright Act by sending out reams of what are known in the industry as "take down notices" to Web sites like YouTube, claiming their artists' copyrights had been infringed upon -- when in fact, sometimes they may not have been at all.

Universal Music Publishing Group has filed a motion to dismiss the complaint, a spokesman said.

File-sharing and illegally downloading of music has devastated a once-booming music industry. Some observers say the industry is just trying to protect itself.

"I think the large copyright holders believe that if they do not police every single use of their copyrighted work -- no matter how benign -- that somehow that will open the floodgates to massive piracy,'' said Gigi Sohn of the Washington think-tank Public Knowledge.

"The problem with that is that viewers, Internet users, consumers, have rights under copyright law as well, and one of those rights is the ability to make fair, lawful uses of copyrighted work, for a variety of reasons," she said.

"The 'Let's Go Crazy baby?'" she asked rhetorically. "When you look at the facts, it's obvious that a take down notice should never have been sent. ... I mean, nobody downloads a video from YouTube with a song on it -- particularly 29 seconds of a song and says, 'OK, I don't have to buy the song' -- so clearly this was a type of use that didn't violate copyright."

Source: Prince 'Scours the Internet' Looking for Violations

For it's part, Universal said it was simply acting at the behest of one of its top artists.

"Prince believes it is wrong for YouTube, or any user-generated site, to appropriate his music without his consent,'' the company said in a statement released to ABC News Thursday. "That position has nothing to do with any particular video that uses his songs. It's simply a matter of principle. And legally, he has the right to have his music removed. We support him and this important principle. That is why, over the last few months, we have asked YouTube to remove thousands of different videos that use Prince music without his permission."

A well-placed source directly involved in the situation confirmed to ABC News that Prince was directly involved in seeking the takedown of Lenz's video.

"This guy scours the Internet,'' the source said of the legendary artist, who once changed his name to an unpronounceable symbol and wrote the word "Slave'" on his cheek until he won back the rights to his music from another publishing company.

"He's really intense about this stuff," the source said, adding that Lenz's video "happened to be one of many'' that artist apparently located online and demanded be taken down.

A publicist for Prince directed ABC News to the artist's personal assistant's cell phone. The assistant did not return a call for comment.

The case is part of what some cyber rights advocates says is an alarming trend in aggressive copyright protection that can sometimes go too far. Entire companies have sprung up to troll the Internet and send thousands of take down notices, warning of legal action if videos that could be deemed to violate a copyright are not immediately removed.

"This is the first major case that we've seen where someone like a housewife is being targeted by a major recording company, but we're starting to see more and more of these kinds of abuses,'' said Jason Schultz, an attorney with the Electronic Frontier Foundation.

"Because of the way the law is set up, it's very easy for people to send copyright complaints to any Web site and demand that videos come down or music comes down, and a lot of providers can't verify.

"What's going on here is that people like Universal are abusing the copyright law in order to censor, take down videos they frankly don't like, but aren't actually infringing copyright,'' Schultz said.

"They aren't violating copyright law. So here Stephanie Lenz posted a video of her kids dancing,'' Schultz said. "It's just a home video. She wanted her friends and family to see it, and Universal had no right to [have it] take[n] down. And by sending an abusive copyright complaint, they really abused the law.''

Lenz and E.F.F. are seeking unspecified damages from the music company.

"I'd like to see [Universal] say that I wasn't a copyright infringer,'' Lenz said.

By Law, YouTube Honors Takedown Notices -- and Counter-Notices

A YouTube spokesman told ABC News that under the provisions of the Digital Millennium Copyright Act, hosting platforms like YouTube are legally obligated to take both the original takedown notices and the counter-notices at face-value, and to honor them.

"This litigation doesn't involve us,'' Ricardo Reyes, a spokesman for YouTube said.

"We are what the DMCA call a hosting platform," he said. "We provide a platform for people to post their content and share it. When we're notified that something is infringing, we take that [content] down. To not take it down would put us in violation of the DMCA. What we have to do is take them at face value. What you are saying under penalty of law is saying you are the owner. If you say you are the owner and you're not, you can be sued."

Conversely, Reyes said, "When we're counter notified, we basically have to take the counter notice at face value too. Our responsibility is to abide by the notices or counter notices."

Caught to some extent in the middle of the takedown notice wars, Reyes declined to address the Prince controversy directly, but said YouTube had been down this road before.

He cited the case of a North Carolina school board council candidate, Christopher Knight, who produced a daffy commercial in which he donned a "Star Wars"-like light saber and promised to protect the school district's students from a metaphorical Death Star.

The VH1 cable television show "Best Week Ever," which highlights amusing online content, featured a clip of the video on their show.

Knight "thought that was so cool he put up the VH1 clip up on his channel on YouTube,'' Reyes said. "And VH1 sent us a take down notice." (To view Knight's video, go to YouTube and search "Christopher Knight.")

Lenz, a blogger and fiction writer, said she's sympathetic to the plight of the music industry and its artists.

"I do understand where the record industry is coming from,'' she said. "They should go after people who infringe on their copyrights. Artists and musicians are owed the money for the product that they create, but I didn't take their product. I bought my CD at my local record store and I played it for my kids, and I wasn't trying to make any money or pass it off as anything other than a home movie of my child."

But the legal controversy has changed the way Lenz thinks, she said, every time she picks up her digital camera. "I'm constantly thinking about what's going on in the background, what's on the TV, what's on the CD player, the characters on my kids' clothes, the characters on the toys that they are playing with,'' she said.

"I'm cognizant of what's going on at every step, instead of focusing on my kids, which is where my attention should be."

As for Holden, the toddler has moved on to punk music.

"He loves music,'' his mother said. "He likes all kind of music. At the time [of the video] he liked anything that was funk or anything that was R & B, and Prince fit perfectly in with that.

"I haven't played Prince for him lately,'' she said, laughing. "But he's getting a little bit more into punk now, so I'm trying to turn him on to Nirvana."

Ron Paul is set to break the single-day internet campaign fundraising record of $3 million and is now averaging $166,000/hour and around $2.5 million total in donations so far on this historic November 5th. At this pace the total could also easily surpass the 2007 single-day fundraising record of $3.1 million set by Mitt Romney.

Senator John Kerry currently holds the record for single-day Internet fund-raising when he raised $3 million for his campaign in 2004, as reported by the NY Times. (Kerry also holds the non-internet fundraising one-day record, raising $5.6 million on July 29, 2004, during the Democratic nomination convention—but this was after the primaries.)

Opinion: The Roads Have Eyes, Part One
Part One of a two-part editorial by Richard Diamond detailing problems of fairness and accuracy that come with reliance upon photo enforcement.

Roads have eyesView full article on a single page

Your days of being pulled over for speeding are numbered. That would be great news, except in an increasing number of states the flashing red and blue lights in your rear-view mirror are being replaced by the photographic flash of traffic cameras -- we'll call them automated ticketing machines, or ATMs. Sadly, these particular contraptions are the opposite of the familiar money-dispensing machines found outside our local banks. Instead, these devices take our money, and dispense it in massive bundles to voracious local governments.

The cameras come in two formats: red light cameras and speed cameras. Both types capture still photos or video clips of cars in motion -- cars that have somehow triggered, either rightly or wrongly, a virtual trip wire that says, in effect, "We just caught you breaking the law." The companies that operate the cameras on behalf of various jurisdictions later mail out the photos they've captured to the cars' registered owners, along with hefty fines for violating a state law or municipal ordinance. Speed cameras use radar, laser, or pavement-mounted sensors to create an estimate of speed. Red light cameras use a similar array of sensors to determine whether a car entered an intersection as little as a tenth of a second after the light has turned red.

If traffic cameras haven't yet come to your town, don't get too comfortable, because local governments are becoming increasingly interested in recruiting the obedient robot tax collectors. And collect they do. In Illinois, for example, roving vans park on the side of the road to facilitate the mailing of citations -- carrying fines of up to $1,000, plus insurance points -- to anyone driving a few miles-per-hour above the 45 MPH speed limit in a highway work zone. (And let's not even question the fairness of special "work zone" fines, except to point out that only about 15 percent of work zone fatalities are actually caused by automobile traffic.)

Following the lead of Illinois, Arizona will soon deploy permanently mounted speed cameras on freeways throughout the state. In just nine months last year, a pilot program in Scottsdale, AZ mailed out 120,000 speeding tickets with a face value of nearly $19 million. In other words, traffic cameras are serious business, generating more than a billion dollars every year for local governments and the insurance industry. While the cameras certainly cramp the styles of driving enthusiasts, a closer look at their implementation reveals that they also make our roads more dangerous and our legal system less fair.

False-Positives

When jurisdictions first decide to begin photo ticketing, officials uniformly swear by the uncanny accuracy and fairness of the traffic cameras. If you're doing nothing wrong, they say, you need not fear our machines. But if you think that anyone who doesn't speed on public roads or run red lights has nothing to fear, think again. Consider the case of Don Zimmerman, a Minneapolis, MN resident with a spotless driving record.

Stopped at a red light in August 2005, Zimmerman prepared to make a left-hand turn from a one-way street onto another one-way street. He inched his car slightly forward and allowed his front tires to cross the first line of the crosswalk. The light turned green, and Zimmerman slowly turned his Ford Focus around the corner. A series of flashes illuminated his rear-view mirror.

Six weeks later, Zimmerman opened his mailbox to find a $142 ticket for running the red light.

The ticket shocked Zimmerman, so he went online to check a video recording of the incident -- and saw that it proved nothing. So he took the next day off from work, paid $20 to store his car in a downtown garage (using a short-term metered spot would have guaranteed a parking ticket), and waited at city hall. Three-and-a-half hours later, a hearing officer looked at the video and agreed that Zimmerman was innocent. The officer then apologized because he actually had no authority to drop the fine. Zimmerman would have to go to court for that.

Exasperated, Zimmerman decided he wasn't about to pay another $20 and wait in line all over again. So instead of following instructions, he called a local television news reporter who threatened to televise Zimmerman's court hearing. The local police captain moved swiftly to dismiss the citation.

Zimmerman's story exposes one of the most significant problems arising from the use of machines to enforce traffic laws: Machines are incapable of fairness (let alone basic judgment), and they can't be cross-examined. This bothersome reality conflicts with the common-law principle of due process, and so our legal system must adapt to the concept of an unthinking device being the sole witnesses of a victimless crime. Most states -- with the exception of California, Arizona and Illinois -- side-step the issue by defining photo enforcement violations as "civil infractions" instead of "crimes." Civil infractions were institutionalized as a way to collect parking ticket revenue (now its own multi-billion dollar business) while eliminating the pesky, old-fashioned concept of "innocent until proven guilty."

The few states that maintain the criminal court system for photo tickets do so at a heavy cost: Overburdened courts get plagued with even more dockets (with taxpayers shouldering the bill), and drivers suffer higher insurance premiums for simply receiving camera citations -- the drivers' actual guilt or innocence notwithstanding.

Camera supporters like to trumpet the point that even if a camera does make a mistake, it's no big deal because the driver has the right to a fair hearing where the ticket can be challenged. That's due process enough, they say. After all, it's not like mistaken tickets are a regular occurrence.

Unless you're Don Zimmerman.Don Zimmerman

In December 2005, Zimmerman opened his mailbox and found another ticket for allegedly running a red light. Once again he checked the online video, which clearly revealed that it was the driver in an adjacent lane who tripped the sensor. Zimmerman bypassed his "fair hearing" and went straight to KARE television reporter Bernie Grace. In an interview with Grace, Minneapolis Police Captain Greg Reinhardt insisted that a police officer reviews every video to ensure only the guilty receive a ticket.

Zimmerman scoffed at the notion. "Either he has cataracts in his eyes," Zimmerman told us, "or he's reading the camera in Braille or something. There's no way anyone viewed that video."

The Minnesota camera enforcement program, like most of its type, takes advantage of those who don't want to go to the trouble and expense of issuing a challenge that can end up costing as much as the ticket itself. For all but a handful of drivers, it's much easier to write the check and be done with it.

Safety First?
Camera supporters argue that while their brainless sentries might make occasional mistakes, they're still worthwhile if they save just a single human life. With speed cameras, for example, the conventional wisdom is that drivers will see the cameras, and slow down to avoid being ticketed. Slower is safer, after all. With red light cameras, the assumption is that drivers fearing a ticket will decide not to gun it through an intersection, potentially T-boning a car headed the other way. Those who do receive tickets learn a valuable lesson, and share their cautionary tales with other drivers. There can be no better way of educating the public about safe driving.

Indeed, a number of studies funded by the Insurance Institute of Highway Safety (IIHS) claim fantastic reductions in the number of violations and accidents in areas where cameras are introduced. But these safety claims merit a closer look -- especially when you consider that the IIHS is wholly funded by the nation's top insurance firms, and the insurance industry makes billions from license points issued with traffic citations.

The first thing worth noting is that a high percentage of traffic camera tickets actually go to out-of-towners. A 2006 study of speed camera tickets issued Washington, D.C. indicated that about 80 percent of the citations went to non-District residents. (To date, the District has mailed out 2,952,333 photo fines -- the equivalent of five for each resident.) In Loma Linda, CA, 93 percent of the violations recorded last year were issued to drivers who were passing through the city. These numbers are relevant because negative-reinforcement therapy applied to out-of-towners does little to increase the safety consciousness of local residents.

This very issue was raised by Jim Bizieff, a police lieutenant in Union City, CA, which runs a red-light camera program. In an internal memo to his police chief, he discussed the experience of the neighboring city of Fremont, which had a camera program of its own. Bizieff wrote, "They believe that due to the huge volume of commuter traffic, that most violators are not local and the education/enforcement effort does not create a long-term reduction in violations for that reason." (View full memo in 260k PDF file)

Bizieff's memo documents another interesting fact: In Union City, the profit from each $361 red-light citation is split between the state, Union City, and Redflex, the Australian company that sets up the cameras, photographs drivers, mails the tickets, collects the cash, and, in many cases, offers the testimony in hearings. Redflex promised Union City that its system would generate about 1,897 photos each month. Sure enough, the first month's numbers were just about right on the money, with $547,560 worth of tickets mailed. (This dollar amounts represents about 1,500 tickets. The Union City cameras actually photographed more cars, but some photos were thrown out because they lacked clarity, or showed police cars or ambulances tripping the camera.)

Then something interesting happened. At one of the camera intersections (Union City Boulevard and Lowry Road), the number of citations plunged from 309 in September to 80 in December. Such a quick 58 percent drop in the number of violations would seem to indicate that the cameras were working as promised. Or was something else going on?

"The initial projections, as well as the first few weeks of operation, were based on faulty yellow light timings," Bizieff's memo explains. "October 2005 was the first full month with the system operating with the correct yellow light timings. There is an obvious drop-off in incidents and citations from August to October."

To put Bizieff's memo in perspective, it's important to know that the duration of a yellow light has a profound effect on safety. Imagine what would happen if you were approaching an intersection, and the light flashed yellow for just a half-second before changing to red. If you were far enough back when the yellow flashed, you would have no problem stopping. But picture yourself closer to the crosswalk when the light flashes yellow. You're now faced with a split-second decision -- either run the red light or slam on the brakes and risk a rear-end collision.

Engineers use the term "dilemma zone" to describe the moment of confusion created by inadequate yellow warning times. Stuck in the dilemma zone, many motorists choose to run the imminent red light as the lesser of two evils.

Given the obvious importance of proper yellow light timing, you might assume Union City fixed its timing problem willingly. You'd be wrong. Dave Goodson, a motorist with an engineering background, performed a number of measurements and calculations after receiving a ticket at Union City Boulevard and Lowry Road. His case forced Union City's traffic engineers to concede that they had set the yellow signal time 1.3 seconds too short. The timings weren't faulty, they were illegal.

They were also profitable.