Is dancing baby takedown notice an abuse of the DCMA?

Tomorrow the Federal Court of California will be asked to decide whether a takedown notice issued by Universal Music in respect of a home video posted on You Tube is an abuse of the Digital Millennium Copyright Act.

The video is of a toddler dancing to "Let's Go Crazy", by Prince. In 2007, Universal Music claimed that this particular dancing baby video (and there are many many dancing baby videos on YouTube) infringed Universal's rights in "Let's Go Crazy".  Stephanie Lenz, the baby's mother, responded saying that the video was a fair use of the song. She asked for declaratory judgment that her home video did not infringe any Universal copyright, and also claimed damages and injunctive relief restraining Universal from bringing further copyright claims in connection with the video. In 2008 the court held that copyright holders cannot order the removal of an online file without first determining whether the posting reflects fair use of the material

The Electronic Frontier Foundation (EFF), an organisation which seeks to protect online free speech, will represent Stephanie Lenz in court tomorrow. It will ask the court to grant Lenz's motion for summary judgment and rule that Universal's takedown was improper and an abuse of the DCMA.

EFF has said that "Parents are allowed to document and share moments of their children's lives on a forum like YouTube, and they shouldn't have to worry if those moments happen to include some background music."

The pleadings and court orders so far can be found on EFF's website.