Did Lenz Waive Attorney-Client Privelege In Talking About Her Dancing Baby Case?

from the that-seems-unfortunate dept

Wed, Nov 17th 2010 8:04pm — Mike Masnick

We just recently spoke about the latest filings in Stephanie Lenz's lawsuit against Universal Music for issuing a takedown for her video of her toddler dancing to 29-seconds of a Prince song. A court has already declared that Universal Music should take fair use into account, but Universal Music is now claiming that it did take fair use into account, and it did not believe that the use of the music in this video was fair use:

Part of Universal's argument is that even Lenz and her lawyers at the EFF didn't think it was fair use. Some of this is based on public statements by Lenz. What I had missed at the time was that a magistrate judge had already decided that Lenz had waived her attorney-client privileges by talking about the communications with others. Lenz had discussed what the lawyers had said over emails, in Google Talk chats and on her blog. Because of that, the judge felt that she had given up attorney-client privilege and ordered the EFF to turn over communications it had previously refused to under a claim of attorney-client privilege. I can see how the information she revealed publicly on her blog may be admissible, but private emails and chats seem a bit extreme. Beyond that, just because she talked about some things they said, doesn't mean that the rest should be revealed.

The EFF, in response, is asking the court to overturn that ruling, stating that Lenz's public comments covered public information and did not amount to a waiver of attorney-client privilege. You can see the EFF's full response after the jump. No matter which side of the case you support, this is a separate and important issue. Talking about some aspects of your case online should not mean you waive your attorney-client privileges on communications. We should encourage public discussion of important aspects of legal cases, not totally scare off participants by thinking they could lose such important protections as attorney-client privilege if they talk too much.

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Filed Under: attorney client privelege, stephanie lenz
Companies: eff, universal music

20 Comments

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Anonymous Coward, 17 Nov 2010 @ 8:34pm

What does after the jump mean.
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- Anonymous Coward, 17 Nov 2010 @ 8:40pm
  
  Re:
  n/m, I figured it out.
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Anonymous Coward, 17 Nov 2010 @ 10:20pm

Mike Masnick, JD
"The EFF, in response, is asking the court to overturn that ruling, stating that Lenz's public comments covered public information and did not amount to a waiver of attorney-client privilege. You can see the EFF's full response after the jump. No matter which side of the case you support, this is a separate and important issue. Talking about some aspects of your case online should not mean you waive your attorney-client privileges on communications. We should encourage public discussion of important aspects of legal cases, not totally scare off participants by thinking they could lose such important protections as attorney-client privilege if they talk too much."

I'm going to spare an actual response to this because you can't be this dumb. Seriously.
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- Anonymous Coward, 17 Nov 2010 @ 10:24pm
  
  Re:
  Compelling argument.
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- Mike Masnick (profile), 17 Nov 2010 @ 11:10pm
  
  Re: Mike Masnick, JD
  I'm going to spare an actual response to this because you can't be this dumb. Seriously.
  
  I love it when folks like you just toss out an insult because you can't actually come up with a response.
  
  Please, do let us know, why talking about one aspect of a case, should mean a waiver of attorney-client privilege on additional communications. Since I'm so dumb, why not educate us, rather than insult us?
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  - ChurchHatesTucker (profile), 18 Nov 2010 @ 10:02am
    
    Re: Re: Mike Masnick, JD
    Because it breaks the first two rules of attorney/client privilege?
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    - nasch (profile), 18 Nov 2010 @ 11:15am
      
      Re: Re: Re: Mike Masnick, JD
      Need more detail, please! If you have it anyway, for those of us who don't feel like researching attorney-client privilege.
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      - ChurchHatesTucker (profile), 18 Nov 2010 @ 11:27am
        
        Re: Re: Re: Re: Mike Masnick, JD
        Er, that was just a Fight Club reference. Sorry.
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        nasch (profile), 18 Nov 2010 @ 12:27pm
        
        Re: Re: Re: Re: Re: Mike Masnick, JD
        Ohhhhhhh, sorry, I missed that.
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Anonymous Coward, 17 Nov 2010 @ 10:53pm

Wait, I don't get it. Why would talking about some parts about a case suddenly waive ALL attorney-client privileges?
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- Anonymous Coward, 17 Nov 2010 @ 11:27pm
  
  Re:
  Isn't it obvious?
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- The eejit (profile), 18 Nov 2010 @ 1:08am
  
  Re:
  Because the other side is a corporation. Jeez! Clearly you missed the memo!
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  - Josh in CharlotteNC (profile), 18 Nov 2010 @ 10:57am
    
    Re: Re:
    Universal has certainly made various public statements about this case. Under the same "logic" can all of their attorney/client communications be made public?
    
    That's just this case.
    
    Now how about every other case in which someone from Universal has made a public statement or put out a press release.
    
    If Universal is not prepared to do so, then this is an obvious double standard.
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out_of_the_blue, 18 Nov 2010 @ 4:30am

Here's news: you don't *have* any right to an attorney.
Not since Obama declared himself able to execute anyone (making explicit and public what Bush did in more or less secret) with zero due process, appeal, or judicial oversight. The system keeps wobbling along with the appearance of normality, but has been fundamentally undermined.

That attitude will be increasingly reflected in court decisions -- with "no privacy on the internet" becoming a de facto standard, so that even those who claim you've nothing to hide (as from Google or the NSA) will eventually get bitten by the effects.
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- nasch (profile), 18 Nov 2010 @ 8:59am
  
  Re: Here's news: you don't *have* any right to an attorney.
  Some argue that's already a de facto standard. Perhaps you mean a de jure standard? (did I spell that right?)
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SLK8ne, 18 Nov 2010 @ 11:55am

Good Grief!
This is just plain STUPID! Nothing is as cute as a dancing baby, and these dimwits close it down? Could anyone anywhere show me any way this hurt Prince or Universal Music? This video might make people and buy the song. The lawsuit will either make people not buy the song or pirate it. The foolishness of these deluded people!
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Gene Cavanaugh, 18 Nov 2010 @ 10:51pm

Attorney Client Privilege
Michael, I agree with you whole-heartedly, but I do know from law school discussions that a "partial surrender" of such rights can be abused substantially, with details tending to "set an image" in the minds of the public (and potential jurors) being released, and other, balancing details being suppressed.
There have been cases where arguable injustice has resulted from such "now you see it, now you don't" tactics.
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Anonymous Coward, 26 Nov 2010 @ 5:01pm

Privacy Invasion by Judiciary
This is a classic case of the judiciary not respecting the right to privacy of ordinary people. It is a deliberate privacy invasion by the judiciary. Attorney-client privilege is well established. The judiciary has no problem respecting it when the client is a corporation or an important person. However, anybody just ordinary, such as a mom with a toddler, is a sitting duck to have their rights violated on any flimsy pretext. Disgusting.
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Anonymous Coward, 26 Nov 2010 @ 5:13pm

Privilege vs Privelege
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Anonymous Coward, 26 Nov 2010 @ 5:17pm

Privilege vs Privelege
Mike, you might just want to run a spell check on that sneaky little word "privilege". Two Is and two Es every time. Cheers.
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