(This post originally appeared on Infoworld’s Notes From the Field blog.)
The recording industry has finally met its match, and it’s one bad mother — or, more accurately, several good ones.
The first good mother in our saga is Stephanie Lenz, who posted a 30-second video of her son Holden learning how to walk on YouTube in February 2007. In the background Prince’s "Let’s Go Crazy" is just audible and the toddler bops gleefully to it.
Naturally, Universal Music responded to this almost unbearably cute video by sending Lenz a DMCA Takedown Notice ordering her to remove it from YouTube, claiming it infringed the rights of both Universal and the Artist Formerly Known As.
After a flood of bad publicity Universal relented and let her repost the video. But that wasn’t enough for Lenz. She wanted to keep the record companies from intimidating other innocent Netizens. So with the help of the Electronic Frontier Foundation, she sued Universal
Last Friday a federal judge in San Jose rebuffed Universal’s attempt to have the case dismissed, calling it a "case of first impression" that addresses an issue not yet decided by any court. One way or another Lenz v. Universal could end up establishing a precedent — by either defending the concept of fair use or affirming the divine right of corporations to do whatever they please under the DMCA.
But that’s hardly the only defeat the industry has suffered at the hands of a determined mom. Last May, an Oregon court ordered Atlantic Records to pay Tanya Andersen more than $108K in attorneys fees after it wrongfully accused her of being a music pirate. The record company dropped its case shortly before Andersen accused them of hiring investigators to stalk her 8-year-old daughter and pretend to be the girl’s grandmother to extract information from her. She’s now counter-suing them under federal anti-racketeering statutes.
In February 2007, Deborah Foster and her daughter Amanda were awarded $66K in court fees after Capitol Records dropped its file-sharing suit against her. (It’s unclear whether Capitol has actually ponied up any cash yet, though.) Meanwhile, the judge in last fall’s Jammie Thomas trial says he may have erred in telling the jury that making files available in a shared folder was the equivalent of distributing them illegally, even if no one but the RIAA itself downloaded them. The instruction was key to the jury’s fining the mother of two $222K for sharing 24 songs. Thomas may yet get another chance to do battle with the RIAA.
In its attempt to terrorize the record-buying public into giving up its file-swapping ways, the record industry has committed all kinds of minor atrocities — from threatening 12-year-old honor students and computer-illiterate grandmas to suing dead people. Remember, this is an industry that had close connections to the mob for decades. They may wear Brooks Brothers suits and sport Harvard degrees, but their tactics haven’t changed all that much. It’s entirely fitting Andersen chose to sue them under RICO laws originally created to bring down organized crime.
Free music has been with us for tens of thousands of years — long before the first cave paintings. The concept of selling music to the public has been with us less than a hundred years. More and more musicians are distributing their own music, even offering it up for free and making money through live performances and ancillary products. If record companies suddenly disappeared overnight, would anyone outside that industry truly miss them? I know of a few mothers who wouldn’t.