Not Smart: Warner Music Issues DMCA Takedown On Larry Lessig Presentation

from the this-is-going-to-hurt dept

Tue, Apr 28th 2009 5:49pm — Mike Masnick

If there were anyone out there to whom you would not want to send a random takedown notice for an online video, it would probably be Larry Lessig. Given that Lessig has become the public face for those who feel that copyright has been stretched too far, as well as being a founder of Stanford's Fair Use Project, and who's written multiple books on these issues, you would think (just maybe) that any copyright holder would at least think twice before sending a DMCA takedown on a Larry Lessig presentation.

Apparently, you'd be wrong.

Lessig has announced that Warner Music issued a DMCA takedown on one of Lessig's own presentations, in which his use is almost certainly fair use. Lessig, of course, is a lawyer, and a big supporter of fair use, so it's no surprise that he's also said he's going to be fighting this.

The thing that I can't understand is who at Warner Music would decide this was a good idea? We've seen Warner make a number of highly questionable moves over the past six months, but this may be the most incomprehensible. Warner Music may claim it was an accident or that it didn't mean to send the takedown, but that's hard to fathom as well. The DMCA rules are pretty clear, that the filer needs to clearly own the content, and previously lawsuits have said they need to take fair use into account. I'm guessing we haven't heard the end of this yet...

Update: Some people have been asking which Lessig presentation was taken down. It's been reposted elsewhere, so you can check it out, and then explain how Warner Music has any claim to a takedown.

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Filed Under: copyright, dmca, fair use, larry lessig, takedown
Companies: warner music group

69 Comments

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Willton, 28 Apr 2009 @ 5:58pm

Lessig Clinic?
You can bet that the Stanford Law IP students will be knocking down Lessig's office door just to be involved in this particular litigation.
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Anonymous Coward, 28 Apr 2009 @ 6:20pm

Hey, the world is full of stupid ideas.

That peanut company CEO got an email from his plant manager telling him their peanuts contained salmonella, the CEO wrote back to ship them anyway. He now will probably be charged with at least manslaughter.

Some guy at the White House decides that they need to fly a 747 over southern Manhattan at 1,000 feet. He might just be fired.

Countless guys actually answer yes to the question "does this make me look fat?"

Beauty may be skin deep, but stupid is to the bone.
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Anonymous Coward, 28 Apr 2009 @ 6:23pm

"...in which his use is almost certainly fair use."

Is it fair use in your view because you have seen the presentation, or is it fair use in your view because Lessig says so?

I hope the former...
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Anonymous Coward, 28 Apr 2009 @ 6:28pm

Re:
Is it fair use in your view because you have seen the presentation, or is it fair use in your view because Lessig says so?

Hmmm, would it be better to trust you own lay view or that of a renown lawyer in the field? Just wondering...
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Anonymous Coward, 28 Apr 2009 @ 6:42pm

Re: Re:
"Fair use" is determined by reference to "facts", and it is the total absence of "facts" that lead me to pose the question. Certainly something more than Twitter snippets is needed to thoughtfully consider the question, even if those snippets are from Lessig.
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Anonymous Poster, 28 Apr 2009 @ 6:42pm

What a bunch of friggin' idiots.
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Mike (profile), 28 Apr 2009 @ 6:59pm

Re: Re: Re:
"Fair use" is determined by reference to "facts", and it is the total absence of "facts" that lead me to pose the question. Certainly something more than Twitter snippets is needed to thoughtfully consider the question, even if those snippets are from Lessig.

Have you seen Lessig's presentations?
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Anonymous Coward, 28 Apr 2009 @ 7:10pm

Re: Re: Re: Re:
"Have you seen Lessig's presentations?"

I have seen many, but the question that remains unanswered is "which one is he Twittering about?"
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Griffon, 28 Apr 2009 @ 7:25pm

mistake = broken law
I wonder why, given the number and primitive rate, of 'mistakes' that the IP owners make that no punitive action its taken for willfully filing false take down notices (there is not language to forgive mistakes, nor should there be).
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Anonymous Coward, 28 Apr 2009 @ 7:28pm

Re: Re: Re: Re: Re:
"I have seen many, but the question that remains unanswered is "which one is he Twittering about?"

Have you ever seen one that came anywhere close to violating copyrights? And do you think that Lessig, someone so familiar with the law as he is, would violate the law?
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Anonymous Coward, 28 Apr 2009 @ 7:50pm

Re: mistake = broken law
Such penalties exist. Willful filing of a false DMCA notice is perjury.
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Anonymous Coward, 28 Apr 2009 @ 8:03pm

Re: Re: mistake = broken law
you never hear of any of these penalties being enforced, though
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Anonymous Coward, 28 Apr 2009 @ 8:14pm

Re: Re: Re: Re: Re: Re:
And do you think that Lessig, someone so familiar with the law as he is, would violate the law?

It is not at all beyond the realm of possibility. Lessig has firm and definite views about the "public domain", and constantly advocates fair use to try in part to achieve that end. He is, however, not the only one associated with copyright law, and in many learned circles involving both academics and practitioners his positions are viewed with skepticism, perhaps the most well-known being his argument before the Supreme Court in Eldred v. Ashcroft. It was sad to read how dejected he felt when the Supreme Court decision overwhelmingly rejected his arguments and upheld the power of Congress to enact the Copyright Extension Act (aka, the "Sonny Bono Act").
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fogbugzd, 28 Apr 2009 @ 8:20pm

Would like to see for myself
I would really like to see the presentation for myself, but it seems that some stupid idiot issued a take down notice. Oh, wait...
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Beck, 28 Apr 2009 @ 8:20pm

Twitter
Twitter is trendy, but it's the wrong platform for this issue. We need a blog post with facts and details. Not a sentence in 72-point type.
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Anonymous Coward, 28 Apr 2009 @ 8:39pm

Re:
WTF are you talking about you moronic troll?
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NullOp, 28 Apr 2009 @ 8:46pm

Hmm.....
Seems Warner has come up dumber than a bag of hammers. Send a take-down notice to the guy who literally wrote the book on fair use. The fact is, i'm sure this was decided by committee. It usually takes a committee to something truly stupid although, as far as I know, they are still awarding Darwin awards.
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Jamie (profile), 28 Apr 2009 @ 9:50pm

"you would think (just maybe) that any copyright holder would at least think twice before sending a DMCA takedown on a Larry Lessig presentation"

What scares me most is that they probably DID think twice, and then still did it.
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bob, 28 Apr 2009 @ 10:16pm

Sorry
This whole exchange lacks meaning without knowledge of which Lessig presentation the DMCA takedown notice was issued for.
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Anonymous Coward, 28 Apr 2009 @ 10:30pm

Re: Re: Re: Re: Re: Re: Re:
It is not at all beyond the realm of possibility.

Anything is possible. Do you think it is a reasonable likelihood?

It was sad to read how dejected he felt when the Supreme Court decision overwhelmingly rejected his arguments and upheld the power of Congress to enact the Copyright Extension Act (aka, the "Sonny Bono Act").

Ah yes. There are still some who believe that "limited time" actually means something other than "forever minus a day", but the Supreme Court knows better. Silly Larry.
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Chuck Smith, 28 Apr 2009 @ 11:47pm

Automated perhaps?
I'm a bit surprised no one yet came to the conclusion that this was probably an automated takedown notice. They probably detected a video footprint and auto-sent the takedown. Of course I'd say this practice is highly questionable and I hope Lessig fights it which I imagine he will!
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Simon Cast, 28 Apr 2009 @ 11:57pm

Lack of penalties
I think one of the items that leads to abuse of these types of laws is that there is no ready penalty for misuse. There is a long standing argument about "day in court" but I think this has gone to far. I know that defendants can win in court but the lopsided strength of the parties is going to lead to out-of-court settlements that don't "punish" companies for abuse.

All laws particular ones like DMCA, should include server penalties for mis-use that can be applied either by a regulator or via petition to a court. Mis-use would include failure to take in account fair use, falsely claiming copyright etc. Penalties would be along the lines of:
* Suspension of rights on a piece of material
* Suspension of action or re-course for a duration

The DMCA isn't going to go away any time soon. The problem is companies receive no penalty for abusing the system and until they do they aren't going to stop.
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Yeebok (profile), 29 Apr 2009 @ 12:22am

Re: Lack of penalties
"All laws particular ones like DMCA, should include server penalties for mis-use that can be applied ..." You mean confiscate their server ? Cool. :) I agree though - almost every law should have a means of stopping and penalising illegitimate or 'outside the spirit of the law' usage - whether the takedown is automated or not (I don't think they should be allowed either). Otherwise in a wildly exaggerated scenario a Warner artist may name their song "High Street" then have that text found on a Google Streetview (the sign for said street) and receive a takedown notice from Warner.
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Dan, 29 Apr 2009 @ 1:04am

Tunnel Vision?
It seems that the Warner Exec's. vision was obstructed by their prostate glands and chose the only visible solution.
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Anonymous Coward, 29 Apr 2009 @ 6:47am

Re: Re: Re: Re: Re: Re: Re: Re:
When I said "sad" I meant it. My use of the term was not meant in any way to be sarcastic. He did take the rebuff quite personally and apologized for his failure to strike a responsive chord with the Supreme Court.
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Esahc (profile), 29 Apr 2009 @ 8:15am

Re: Re:
People doing stupid things, like whomever at Warner thinking this take down was a good idea.
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alternatives(), 29 Apr 2009 @ 8:17am

Did you ever consider
that this is the choice of someone who doesn't LIKE the system and is monkey-wrenching things? Like the unnamed employee who changed the talking barbies to say 'math is hard' or the guy in AT&T who thought calling their new network product SkyNET was a good plan.
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Daisy Whitney, 29 Apr 2009 @ 10:29am

Lessig is the Fair Use God
This reminds me of the movie line: "They don't know who they are dealing with." Lessig practically wrote the book on fair use. This will be fascinating to see what happens! Go Lessig!
Daisy Whitney
Writer/Report
Check out my Ebook on fair use and online video: www.daisywhitney.com/ebooks
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Anonymous Coward, 29 Apr 2009 @ 10:42am

Here is the lecture in question:

http://blip.tv/file/1937322
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Jay, 29 Apr 2009 @ 12:04pm

Re: Re: Re: Re: Re: Re: Re:
That doesn't make him wrong. It just means that the Supreme Court is serving the interests of copyright holders instead of the common interest, just as our corporate overlords ordered it to do.
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Anonymous Coward, 29 Apr 2009 @ 12:31pm

Re: Re:
Are you a peanut company CEO??
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AZ, 29 Apr 2009 @ 12:45pm

The Bullies and the Bullied
Laws of this nature are about money and how much you are willing to spend to get your way. Bullying will always initially work in these types of cases.

Monsanto has a killer track record in bullying.
http://www.vanityfair.com/politics/features/2008/05/monsanto200805
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Anonymous Coward, 29 Apr 2009 @ 12:54pm

Re: Lack of penalties
We live in the land of Lack of Penalties. The Govt, Banks, polluters, etc...
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Mike Peele, 29 Apr 2009 @ 1:51pm

DMCA On Larry Lessig
Should any of this this surprise us? Think about the "brilliant" idea Sony had putting a root kit on their cds. (I hope the exec responsible for that is sleeping on a park bench. I am a computer tech and have had to remove the bugger.) Apparently corporate politicians are just as out of touch with reality as those inside the beltway.
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Alligator, 29 Apr 2009 @ 2:55pm

Re: Re: mistake = broken law
No, it's not perjury because it's not sworn testimony. But 512(f) imposes liability for damages on anyone who materially misrepresents that content or an activity is infringing in a takedown notice. As others, however, have noted recovering damages under 512(f) requires going to court. You only need an internet connection to send a takedown notice.
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Anonymous Coward, 29 Apr 2009 @ 4:02pm

Re: Re: Re: Re: Re: Re: Re: Re:
No, it just means that while he's a learned professor he's not necessarily good in court. The Supreme Court repeatedly asked him "these extensions have been happening for decades - what harm have they done?" and rather than answer the question (and he could have - he knows the harm is demonstrable) he basically said "it doesn't matter what harm was done, this is about principle." That's what lost the case. The harm does matter, but he didn't introduce it into the proceeding (and you know his opponent wouldn't) so it's like it doesn't exist.
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Albert Bodenhamer, 29 Apr 2009 @ 4:21pm

Possibly just a lone idiot?
Some people have suggested it's an automated notice. Possible. It may also have been issued by an ignorant, underpaid drone in their enforcement department. "OK Johnny. Here's your desk. You're making minimum wage, because we haven't figured out how to pay you less and get away with it. Your job is to surf the net and look for anything we own. If you're in doubt, we own it. When you see something, here's the form letter for the takedown notice."

Keep in mind that MS sent a recruitment letter to RMS a few years back. Probably the same sort of idiocy.
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Monty, 29 Apr 2009 @ 4:58pm

No, this is a genius move by Time Warner
Time Warner must have a team of expensive, knowledgeable lawyers as well, and I am willing to bet they knew EXACTLY what they were doing when they issued this takedown notice. They knew that Lessig would respond in this way, and Time Warner plans on winning. If they do, this will be a huge blow to fair use, and that's what Time Warner wants.
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Michael Chermside (profile), 29 Apr 2009 @ 8:49pm

My opinion after viewing the presentation.
For what it's worth, I DID just view this particular presentation, looking for possible misuses. Although I do not know what particular piece of copyrighted material Warner Music may be objecting to, I noticed there was extensive use throughout the presentation of excerpts and snippets from material. One (or more likely several) of these are likely owned by Warner Music. In each and every case, the excerpts were brief (mostly VERY brief -- rapid presentation of supporting material was used as a rhetorical device). And all were used to illustrate a point; arguable as briefly as would be sufficient to illustrate the point he was making. Thus (considering the 4 factors that define free use):

(1) The entire presentation is offered freely on the internet; the purpose of the presentation is to educate people on Dr. Lessig's opinion on this subject (about which is an acknowledged expert). To me, that sounds non-commercial and/or educational.

(2) I don't know the nature of the copyrighted work in question. I expect it is a snippet of a music recording.

(3) The brief snippets are much shorter than the work as a whole.

(4) And few are likely to use this presentation as a way of listening to the music (or viewing the video, if that's what's being objected to) because it is an inconvenient form for that purpose and because only brief excerpts are used. I doubt the distribution of this video will harm sales of the music. For some of the pieces used (especially some of the mix videos) it might *aid* sales by pointing them out to people -- but those are probably not what Warner is talking about anyhow.

So I'd say it is clearly fair use. That's only a personal opinion -- I'm not licensed to practice law.
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Alligator, 29 Apr 2009 @ 9:02pm

Warner probably found out when the rest of us did
As we've already seen, Warner and YouTube had a fight, so Warner took its ball and went home. That is, Warner used ContentID to automatically send takedown notices for any video matched a Warner audio fingerprint. Because Warner wanted to remove all of its content, not just infringing content, it did not examine any of the flagged videos -- it simply sent takedown notices. So, this is not some brilliant strategy, nor is it due to an untrained, minimum wage employee. It's merely the high profile result of automated takedown notices.
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Fausty, 29 Apr 2009 @ 9:09pm

Torrent of presentation
Just in case, we've seeded a .torrent of the underlying presentation. Public tracker, no ratio limits or other constraints. So if you want to grab a copy that's not embedded in some toob-ish site, there it is (440 megs or so, saved as .flv). Regards, Fausty
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Anonymous, 29 Apr 2009 @ 9:36pm

Fame
I doubt the people sending takedowns knows who he is. Warner probably sends a lot of notices, and that requires a lot of people, probably working minimum wage.
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Jonnan, 30 Apr 2009 @ 1:08am

Re: Hmm.....
Just out of curiosity, why do people say that? Virtually every really stupid decision I've ever seen can actually be tracked back to one specific stupid person.

I'll admit, sometimes they are misapplying a rule that came out of a committee, but the rule generally makes perfect sense to anyone that's not an idiot.
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John P, 30 Apr 2009 @ 8:31am

A bug in the system.
I watched the video being claimed to infringe copyright law. In my opinion, any rational human being, after watching the presentation, would not even consider the legal considerations under existing copyright law.

The imagery, audio, and remixes used, poignantly depicted the realities of the artistry and culture spreading online today. Some of the examples were truly amazing pieces of work, which would have been impossible to create as little as a few years ago.

This was obviously a social and political statement, using appropriate examples from existing culture ( and none in it's entirety), to reinforce the author's position, and facilitate the understanding of those viewing the statement.

If this was an automated take down notice, then it clearly shows a flaw in the base coding of the detection system. There is absolutely NO method of determining the validity of use in an automated manner. If this was not an automated take down notice, it would indicate a more profound problem.

Does a letter or notice from a lawyer have the force of law? Just receiving a letter claiming their belief in infringement does not constitute proof of infringement. Yet the receipt of such letters is followed by take down as if it were a court order stating proof of infringement requiring action. This makes no sense to me at all, except in the use of law as form of duress or extortion - clearly not what the principle of law is designed for.

With obligatory IANAL, I presume no defence other than the viewing of this presentation would be required to convince any rational human being of the falsity of infringement claims. Unfortunately, rationality may be in in short supply these days.
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Jeff little, 30 Apr 2009 @ 11:11am

s
(the "Sonny Bono Act"). Also known as the Republican tree hugger.
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ge, 30 Apr 2009 @ 4:36pm

Re: Re: Re: Re: Re: Re:
"And do you think that ... someone so familiar with the law as he is, would violate the law?"
Well, consider this... http://news.bbc.co.uk/1/hi/magazine/7967982.stm ... and someone once said, "familiarity breeds contempt"... ... but it wasn't me,...
uncle ger
ps - I'm pretty sure I know what you mean, but the GF poster may just have wanted to form an opinion of his own. I think that's a pretty reasonable thing. If he doesn't agree with me (and/or you) he's foolish, but not necessarily wrong.
I'm going to eat some apple sauce,... later
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JC, 30 Apr 2009 @ 8:57pm

Re: (they did it anyway)
I think the idea is that they have enough lawyers, and enough clout, and enough money in the pockets of the judiciary/congress that they think they can do whatever the hell they want. Unfortunately, they've been correct with these tactics so far.
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Anonymous Coward, 2 May 2009 @ 1:56am

Re: No, this is a genius move by Time Warner
In all likelihood this was an automated notice. Time Warner doesn't have to think twice about sending those things.
Lawyers representing TW and other rights holders helped write the DMCA. The only way a rights holder can perjure themselves is if they claim ownership of content that they don't actually have the rights to.

THERE IS NO PENALTY IF, BY "ACCIDENT", A TAKEDOWN NOTICE IS SENT TO SOMEONE ERRONEOUSLY. If Time Warner has the rights to the content that they CLAIM was used in Larry's presentation, there is no penalty for sending a takedown notice for something that is patently fair-use. They wouldn't even be in the wrong legally if said content wasn't actually in the presentation at all.

The DMCA was written with the help of lawyers from rights holders and they made sure that there is zero liability on their part in cases such as this.

That said, I am not a brilliant law professor, specializing in IP, from Stanford...I would be absolutely delighted if Lessig found some way to legally bitch slap those pricks (and somehow force them to go about the whole takedown procedure in a more restrained way).
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Anonymous Coward, 2 May 2009 @ 12:37pm

Re: Re: Re: mistake = broken law
No, it's not perjury because it's not sworn testimony.

I think the DMCA take down notices I have seen have included sworn statements.
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club penguin, 1 Jun 2009 @ 11:03pm

It is the total absence of "facts" that lead me to pose the question. Certainly something more than Twitter snippets is needed to thoughtfully consider the question, even if those snippets are from Lessig.
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aicra, 20 Jun 2009 @ 7:57am

Good response, club penguin
I agree. Sounds questionable to me. If anything, some investigation should be done as to the actual sender... before posting such snippets.

Could be a false notification, not really from Sony... you know.
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woodworking plans, 7 Oct 2010 @ 10:32am

Over the past three years, Lessig has given more than 100 talks like the one captured here.

On July 24, 2002, at the O.Reilly Open Source Conference he announced this would be one of his last.
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Citizen Titanium, 8 Dec 2010 @ 5:34pm

It seems that Warner is in for a very big fight! Let's see what happens next. Citizen Titanium
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skin care, 18 Dec 2010 @ 12:19am

This is controversial. I am quite interested on knowing the progress on this issue.
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Storage Sheds designs, 4 Jan 2011 @ 11:10pm

Re:
Yeah, me too, I wanna know if there's any updates regarding this issue.
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Yeastinfection, 16 Apr 2011 @ 12:35pm

What are you talking about?
Seriously i do not get your point....
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juegos de mario, 19 Jul 2011 @ 2:44am

reply
Interesting post about Warner Music Issues DMCA. Finally what was the result?
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sports medicine salary, 25 Jul 2011 @ 2:10pm

Re:
Music business needs to get their act together
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jorolo87 (profile), 30 Jul 2011 @ 3:11am

Re: Re: Re:
What was wrong with the presentation?
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Car Rental NYC, 30 Jul 2011 @ 6:30pm

That seems like exactly who I'd want to issue a takedown notice to if I were Warner (assuming I had a reasonably compelling case, which I make no judgment on here since I'm not an IP attorney, and I'm guessing neither is the author).
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wedding stationery, 17 Aug 2011 @ 3:21pm

never!
Not a million years! IP shmiepie!
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tweet adder crack, 18 Jan 2012 @ 11:34pm

really great.
It is really a great and useful piece of information. Please keep us up to date like this. Thank you for sharing.
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Charles, 24 Feb 2012 @ 6:14pm

larry Lessig
We all know the agenda when it comes to politics and regulating anyone wanting the rights that were written in constitution. It will never change. Kick their butt larry!
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lrobbo (profile), 23 May 2012 @ 11:14am

So, what did happen with this, any updates?
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Brandschutz, 30 Aug 2012 @ 6:47am

And what happened then? :)
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Waschtische, 5 Sep 2012 @ 4:56am

What was wrong with the presentation??? :)
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Waschtische, 5 Sep 2012 @ 4:56am

What was wrong with the presentation??? :)
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Rocky, 26 Sep 2012 @ 9:27am

Brandschutz, to find out what happen next wait for the Part II of this post ...lolz!
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timber investment, 8 Oct 2013 @ 3:18am

lessig
Lessig is a proponent of reduced legal restrictions on copyright, trademark in technology so nothing is surprising about this!
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