Label Threatening Larry Lessig With Insane Infringement Claim Over Fair Use Video Caves In, Pays Up

from the no-precedent-unfortunately dept

Fri, Feb 28th 2014 2:07pm — Mike Masnick

Last summer, we wrote about what appeared to be a suicidal Australian record label, Liberation Music, which issued a DMCA claim (after first having a disputed ContentID claim) on a classic presentation by famed professor (and copyright/fair use expert) Larry Lessig, in which he discusses fair use and creativity, using as an example, some clips that made use of the song "Lisztomania" by the band Phoenix. Liberation holds the Australian (not US) rights to that song, but still went DMCA crazy. Lessig filed a counter-notice and Liberation (again, apparently having no idea what it was doing) sent Lessig a letter saying that it would be filing a copyright infringement lawsuit against him if he didn't retract his counter-notice. The whole thing was bizarre. It was as if whoever was doing all of this at Liberation Music was unaware of basic copyright law, the concept of fair use, how the DMCA works and (most importantly) who Larry Lessig is. In response, Lessig did the appropriate thing and filed for declaratory judgment and (more importantly) sought damages under section 512(f) of the DMCA, the nearly toothless clause of the DMCA that lets victims of bogus takedowns seek damages. As we've been pointing out for years 512(f) is almost entirely useless because courts almost never enforce it -- and we hoped that with such a clear cut case, we might finally get a good 512(f) ruling on the books.

It would appear that Liberation realized it was going to lose and lose big, and so it's agreed to settle, paying an undisclosed sum to Lessig (who is passing it along to the EFF, who worked on the case) and agreeing to change its practices with regards to takedowns and legal threats. Amazingly, the company more or less admitted what people suspected: it just had some clueless employee in charge of all of this:

As a condition of the settlement, Liberation Music submitted a declaration explaining its takedown procedures. Liberation Music had allowed a single employee to use YouTube's automatic Content ID system to initiate the takedown process and then, when Lessig challenged the takedown, threaten a lawsuit. The employee, who did not have a legal background, did not actually review Lessig's video before issuing a threat of a lawsuit.

Liberation Music's new policy will still rely on YouTube's system, but it will ensure that no takedown notice is issued without human review, including fair use considerations. Liberation Music will also limit its copyright enforcement to jurisdictions where it actually owns or administers the copyright.

Of course, I'm sure some of you (like me) will be slightly disappointed that the case settled this way, rather than getting a clear ruling in favor of a 512(f) sanction. In fact, I'm pretty sure that both EFF and Lessig would like such a ruling as well. But, there's also reality to deal with here, and specifically it appears that Liberation more or less folded like a cheap card table once it realized the legal position it was in. If a party basically offers to settle for terms that match what it would likely get in a final court ruling, and the other party doesn't accept, courts tend to look very negatively on that situation. While there would be extra value in having a final ruling in the case, rejecting a settlement offer that is a complete capitulation would likely lead to an angry judge questioning why he or she was wasting time doing something that was more or less worked out privately outside the court. District courts want to focus on making sure justice is served, not on setting precedent for future cases, so if the settlement matches that, it wants you to take it. Given that, it's no surprise that Lessig and EFF went with the settlement. While it's a little disappointing that the amount was kept secret, I'm sure that the folks at EFF will put it to good use, hopefully fighting more 512(f) fights.

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Filed Under: copyright, dmca, fair use, larry lessig, phoenix
Companies: liberation music

17 Comments

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That One Guy (profile), 28 Feb 2014 @ 12:19pm

Gotta love the classics
'It wasn't us, honest, it was the new guy, he's the one responsible for all of this mess, we didn't have anything to do with it!'
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Anonymous Coward, 28 Feb 2014 @ 2:50pm

You'd think that a label of all places would be aware of what the penalties are when one makes a false DMCA claim if they are going to use it. It's not exactly brain surgery we're talking here.
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Anonymous Coward, 28 Feb 2014 @ 2:54pm

instead of making studio and label bosses think twice before issuing these take downs, knowing full well they are abusing the system (and that there is no comeback on them unless the accused can afford to go to court), this ruling will make them issue more of the same, making them even more determined to get their own way, rather than think twice, which is what anyone with even half a brain would do!!
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Anonymous Coward, 28 Feb 2014 @ 3:09pm

"Liberation Music will also limit its copyright enforcement to jurisdictions where it actually owns or administers the copyright."

Aww, guys, that's so awfully grand of you! Big gesture. Big.
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any moose cow word, 28 Feb 2014 @ 3:13pm

Re:
In my experience, those in the music biz, or just about any artistic industry, are generally clueless about actual copyright law. Their understanding of copyright is more of a dogmatic mythos that is only tangentially related to reality, and whenever they discover that their "idea" copyright doesn't match actual laws, they scream like howler monkeys until the law is changed to conform to their preconceived notions. But when the law is expanded to fit their ideology, it only inflates even more.

There is some good news though. As copyright becomes more abusively one-sided against their preconceived freedoms, more artist are coming around to see what we've been saying all along.
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That One Guy (profile), 28 Feb 2014 @ 3:13pm

They do
It's none whatsoever 99% of the time, it's just this time they were stupid enough to go after someone who was more than willing, and able, to fight back.
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any moose cow word, 28 Feb 2014 @ 3:38pm

When they say it was just a single employee, they fail to mention that they most likely have many others just like him doing the exact same thing. It would cost way too much to hire lawyers to review all of those videos, or even people marginally familiar with copyright law, so they just take random people who replied to an ad. And even then, it would cost too much to hire enough people to actually watch the videos flagged by youtube to verify actual infringement. Instead, they commit systematic perjury. And when they get caught, they get to claim ignorance and shoulder the blame on some random employee.

Maybe I should outsource all of my deeds. Can't break a law if I don't actually do anything.
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any moose cow word, 28 Feb 2014 @ 3:41pm

When a company commits a crime, ignorance of the law is acceptable--merely an honest mistake. Yet when an individual unknowingly commits a crime, such ignorance is inexcusable.
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rasz, 28 Feb 2014 @ 6:22pm

Sure looks like a loss for Lessig. Settlement is a win for a lawyer that is in trouble and facing worse outcome.
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Anonymous Coward, 28 Feb 2014 @ 8:04pm

Sounds more like Lessig was the one who caved in. If a Harvard law professor can't win in court, who can?
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Anonymous Coward, 28 Feb 2014 @ 9:26pm

Re:
It would cost way too much to hire lawyers to review all of those videos, or even people marginally familiar with copyright law, so they just take random people who replied to an ad
Not to mention that the performance of these people is based on how many "infringements" they find. (After all, if they're not finding any, they can't be doing their job correctly.)
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That One Guy (profile), 1 Mar 2014 @ 1:07am

Re:
Reading the last bit would have helped with that misunderstanding, it never reached court, because the company threatening to sue realized how screwed they'd be if it went to court, and so settled to end the case. Had Lessig refused, and demanded it come to court, he, not the company, would likely be the one the judge would be the most annoyed with.

The relevant section:
If a party basically offers to settle for terms that match what it would likely get in a final court ruling, and the other party doesn't accept, courts tend to look very negatively on that situation. While there would be extra value in having a final ruling in the case, rejecting a settlement offer that is a complete capitulation would likely lead to an angry judge questioning why he or she was wasting time doing something that was more or less worked out privately outside the court. District courts want to focus on making sure justice is served, not on setting precedent for future cases, so if the settlement matches that, it wants you to take it.
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Darryl Boyd, 1 Mar 2014 @ 11:11am

"District courts want to focus on making sure justice is served, not on setting precedent for future cases"

I'm not so sure - see: 9th District Court.
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askeptic, 1 Mar 2014 @ 11:38am

A public butt-kicking is always an acceptable compromise when you get to do the kicking.
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Bpat, 2 Mar 2014 @ 6:28pm

Interesting note: Here in Australia we don't (yet) have a fair use clause. A review was done recently that suggested adding it, but our government just changed so it will probably be explicitly excluded instead.
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Anonymous Coward, 11 Mar 2014 @ 10:43am

I guess that's one way to get them to appear in the suit.
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Anonymous Coward, 11 Mar 2014 @ 10:43am

Re:
Weird. That comment was supposed to show up in the comments on another article.
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