It is one of the newest words in the English language and today is a great day to use it. So here I go.. WOOT! I realize that so very often bring only bad news here when I discuss the RIAA, MPAA and copyright issues. Today it is not the case.

Back on 26 July, 2007, I first posted here about what I dubbed the "dancing baby case". (Others are also referring to the case the same, I have no idea who first used the term. I take no credit for the phrase.) To sum it up:

1. Stephanie Lenz posted a 29 second video to YouTube of an adorable child bopping to "Let’s Go Cray" by a certain artist with a serious identity crisis.
2. Some, in my opinion, zipperhead at Universal who removed his brain the night before and forgot to reinsert it before going to work thought it prudent to send a "DMCA takedown notice" to YouTube. (I am certain Universal suffered irreparable damages in sales on the decade old song for the kid was just way too cute.)
3. The EFF decided to take up the case based on "Fair Use" and freedom of speech. (full release available here)
4. On 21 September, 2007 Universal filed a motion to dismiss. This is followed by motion after motion after motion. You can look in more detail at the EFF page on this case.
5. Almost a year later, I heard the case was scheduled for court.
6. Thursday, August 21, 2008 while on lunch break amidst a very hectic day I got a slim bit of information that the case would proceed and I posted a promise to my readers to follow up.

Today is follow up day.

What does this all mean? It means that a key decision is going to be made regarding an important issue regarding the Digital Millennium Copyright Act.

Universal actually told the court that they need not consider "Fair Use" when issuing such "DMCA takedown notice". Universal, the defendant in this case, still wished the case dismissed. As I will explain further, this would be, in my opinion, a victory for Universal. Fortunately for sake of "Fair Use", that motion has been denied.

DMCA is and acronym for the Digital Millennium Copyright Act. I feel this act is intended to deal with the new era of digital media and how it can facilitate the violation of the rights of copyright holders. I also feel that copyright is at the point of future shock and our current laws simply lacked the foresight of where technology has taken us in terms of the production and distribution of intellectual property. Also my opinion, the current state of copyright and intellectual property rights is about as useful as a mule driven carriage on the Autobahn.

Keep in mind that this all came to be from the same government that first brought us income tax to us as a "temporary tax". Personally, I see Social Security vanishing way before I have to work until April 23, 2008 to cover my Income Tax for the said year. The world changes; faster every second. All jesting aside, it is only going to get harder to keep up. Our legislators are simply more likely to lack foresight. They are just as human as the rest of us.

This applies to the DMCA in a Lumpy-tangent-like manner because, as I understand it, it did not specifically address the issue of "Fair Use". I feel that in an era of ever increasing content production growing increasingly fast in terms of the common person being able to generate content it is an grievous error of judgment. No one really saw it coming. Well, actually some did, but they were just not listened to enough.

The reason that a dismissal would be a victory is actually tied into all of this. The Act requires that, for the lack of a better word, the host of any violating material must remove it when they receive a "DMCA takedown notice" is required by law. There is no explicit requirement that the sender must consider "Fair Use". If the case were simply dismissed, the issue would remain, at the very best, unresolved. It may also give the sender the potential to go on a rampage.

Consider the following fictitious example…

Let us all assume that I, Lumpy the Cyber Junkie, am driving along in my car. I am using a camera to record my road trip, listening to the radio and using EDVO to actually distract myself while driving while using voice to text to remain in my humble IRC channel over at WyldRyde. Suddenly a huge F5 tornado apears while the lyrics "it’s the end of the world as we know it" blares over my radio. I am picked up bounced about, tossed skyward higher than a Cedar Point ride while managing to belt out seven Hail Marys prayers in .2 seconds, crash to the ground harder than a bad NASA Mars landing and no one will ever have to tolerate my rambling post at lockergnome ever again… but there is ground breaking data about being sucked into a funnel. It seems likely that it may even help predict tornadoes.

Extent the absurdity of this example to assume that i somehow manged to have the video automatially posted. What could happen next?

The "DMCA takedown notice" follows, the data is taboo and not allowed. Tornado prediction suffers a major set back, 10,000 ground living insects, two squirrels, one camera, one EDVO card, one fictitious no-name car and a certain Lumpy are now lost and sealed to eternity without any hope of a reprise… for naught. More or less, it is just as if it never happened.

Now, regarding the example did I:

• Call up the radio station and request the song? Certainly not, I never said I had a cell phone. I doubt Stephanie Lenz planned her video either.
• Did I toss chicken feathers and bones, snort the right amount of eye of newt and dance like Prince to summon the cloud of death? If you believe so, I suggest you seek professional help. It was, although fictitious, a spontaneous life event. I am confident that the same is true for Ms. Lenz.
• Did I intentionally plan the recording and distribution of the video to harm the intellectual property owner of the said song?
• Or was I just sharing my life experience with others as the new technology of the day allows?

I hope you get my point. I also have another thing to say. Mr. Prince, all jesting aside, I honestly respect you as a performer and a musician. I followed your work until "Love Sexy" and feel that "Controversy" and "Sign of the Times" are two of the best albums ever recorded in this era. I think you are one of the best composers, entertainers and musicians of this era. I would be surprised if history recorded it otherwise. I also understand the following statement to ABC news in October 2007:

Prince believes it is wrong for YouTube, or any other user-generated site, to appropriate his music without his consent. 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’s why, over the last few months, we have asked YouTube to remove thousands of different videos that use Prince music without his permission.

As I have done so in the past, I feel it important to mention that I do not in any way shape or form endorse piracy. That material, as some of his lyrics state &qout;belongs to Prince&qout;, but if you are that bent about it… Get your own private stream. However, when your label issue a "DMCA takedown notice" for a song that is intellectually owned by someone other than you, how does that not make you look like a hypocrite? I think your success has gone to your head. Mr. Purple Rain, I think if you actually did a fan based, and not money based, podcast you would be surprised. Less than half a minute of partially audible music in the background is not ripping you off.

A blanket right to issue "DMCA takedown notice" is not the answer. If pirates are to be held accountable, so should the senders of "DMCA takedown notice". "Fair Use" is law. It is just as simple as acting responsibly and honestly. If Prince is so bent on controlling the use of his music, maybe he should simply demand his own private radio stream. The technology is certainly there. I also feel the technology is here to totally bypass the RIAA for royalties but that is another issue. (very likely another post as well) Why should we all have to worry about when any given radio station plays it while we are documenting our lives? I think the only message you clearly sent is that we should shun your music and ask our radio stations not to play it.

Universal now has 20 days since the 20th of August to respond. I am going to be watching what happens with this. Feel free to comment and thanks for reading.