The Social and Economic Basis of the Litigants’ Actions

From a legal standpoint, this case is very interesting and raises larger questions that clearly need to be resolved; however, from a social and economic standpoint, it is not completely clear why the parties have gotten involved in it at all. Prince has pursued the option of takedown notices far more than other artists have, in general, done; Lenz has also challenged the notice in a manner that few users would dare (or, perhaps, care) to do.
The publicly available information indicates that Lenz is pursuing this case as a matter of principle; she and her EFF lawyers recognize the importance of the case as a precedent. As her lawyer said, “Copyright abuse can shut down online artists, political analysts, or—as in this case—ordinary families who simply want to share snippets of their day-to-day lives. Universal must stop making groundless infringement claims that trample on fair use and free speech.” This reflects the fact that an important legal goal of the case, to restrict future takedown notices, is a social goal rather than an individual goal pertaining only to Lenz and her video. Universal is not demanding money from her, and she is unlikely to benefit financially from the video.
The issue of fair use in DMCA takedown notices, which Lenz’s case has hoped to resolve, has definitely had other social effects; for example, news organizations have sent many such notices to YouTube in connection with McCain and Obama campaign videos, prompting the McCain campaign to call for legal review by YouTube of its takedown notices. The campaign suggested as an alternative that such review be conducted only for political campaigns; Lenz appears to believe that a more broad approach to the problem is needed, thus extending the problem from politics into the wider social domain. However, Lenz’s proposed restriction on takedown notices would also protect political fair use, and as noted above her legal team has invoked this issue.
Prince may also be motivated by principle to some degree; there is however an economic basis for his essentially zero-tolerance policy on unauthorized dissemination of his music. Prince’s lawyers have stated, “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.” Yet Prince has also been very tight on permission for uses, for example by not posting official music videos to YouTube as many other artists have (at least as far as my searches have indicated). A casual investigation suggests that he is pursuing a fairly comprehensive policy of denying permission and issuing takedown notices (as his lawyers have said), by contrast with other songs from a similar time period. Searching for “prince let’s go crazy” on YouTube yields Lenz’s video (nearly a million views) along with three other videos averaging only 2 months of age and under 6,000 views. Note that this song was a Billboard #1 single. For comparison, searching for “lynyrd skynyrd that smell,” not a #1 single, yields an average of 1 year of age and over 100,000 views for the first four videos. Searching for “michael jackson thriller” yields an average of 1 year and 12 million views per video for the first four, even though this was not a #1 single either and an artist with a Prince-like strategy might prefer to restrict video distribution more because of the emphasis on dancing in the production and distribution of that song. This suggests that Prince is fairly consistently attempting to make his music hard to obtain online, thus significantly reducing the lifetime on YouTube of videos with his music and the number of people who view it for free. This has a dual effect on demand for his albums: a reducing influence because of reduced publicity and increased demand because of decreased free availability.
Prince’s approach is atypical compared to the approaches of other artists. There are several recent precedents for music copyright holders challenging creators of derivative works. Reggaeton artist Daddy Yankee has sued the Mexican band Los Lagos for changing the words to his hit “Gasolina” in a cover, even though they had obtained his permission to make the cover and change the musical arrangement. Rapper Coolio condemned parodist Weird Al Yankovic for supposedly not seeking permission for a parody of “Gangsta’s Paradise,” entitled “Amish Paradise,” but did not take legal action; perhaps Coolio wished to protect the reputation of his song by distancing himself from the parody but did not feel the need to pursue it in court or assumed he would lose on fair use. One may argue that a parody is sufficiently different from the original work that it serves as effective publicity without giving away enough of the song to discourage purchase. Some artists have encouraged parody, likely on this basis, even to the point of allowing parodies that insult them. Corpulent rapper Down AKA Kilo has been quite permissive toward the parody “Eat Like a Gordo [fat guy]” of his song “Lean like a Cholo,” even allowing
the YouTube posting of his original video with the parody lyrics substituted for his own to highlight Down AKA Kilo’s obesity, and a video that claims “Eat like a Gordo” is by “?????idk i think down aka lil kilo” (both videos have lasted a year and a half and attracted over 100,000 views). It is not clear to what extent these would be fair uses, especially the first video. On the other hand, a video with a relatively short portion of a Prince song in the background, while perhaps not as prominent publicity as a parody, is definitely unlikely to serve as a replacement for purchased music, and is beneficial to the artist insofar as it would make viewers desire to hear the rest of the song (similar to a movie preview). So Prince can be effectively contrasted with these artists.
Thus Lenz’s socially oriented motivations in setting a precedent to protect fair use is relatively clear. Prince may be working from principle too, though a somewhat atypical economic strategy seems to be at work in his camp.