Band Whose Label Threatened Larry Lessig Comes Out Strongly In Favor Of Fair Use

from the good-for-them dept

In the wake of Liberation Music settling with Larry Lessig over its direct threat to sue him for clear fair use, the band whose music was involved in the dispute, Phoenix, has put out a strong statement in favor of fair use. Not only have they posted Lessig's original video to their own blog, but they note that they did not at all approve of the way the label acted. Furthermore, they support copyright reform that would better protect fair use, and encourage people to build on their music to get "inspired."

We Support Fair Use of Our Music!

We were upset to find out that a lecture by professor Lawrence Lessig titled 'Open' was removed from YouTube without review, under the mistaken belief that it infringed our copyright interests.

This lecture about fair-use included -as examples- bits of spontaneous fan videos using our song Lisztomania.

Not only do we welcome the illustrative use of our music for educational purposes, but, more broadly, we encourage people getting inspired and making their own versions of our songs and videos and posting the result online.

One of the great beauties of the digital era is to liberate spontaneous creativity - it might be a chaotic space of free association but the contemporary experience of digital re-mediation is enormously liberating.

We don't feel the least alienated by this; appropriation and recontextualization is a long-standing behavior that has just been made easier and more visible by the ubiquity of the internet.

In a few words: we absolutely support fair use of our music, and we can only encourage a new copyright policy that protects fair use as much as every creators' legitimate interests.

Nicely said. If only the label they contractually worked with to manage the band's own copyright interests had recognized that.

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

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

from the no-precedent-unfortunately dept

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.

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

Larry Lessig Threatened With Copyright Infringement Over Clear Fair Use; Decides To Fight Back

from the bad-ideas:-threatening-larry-lessig-with-a-copyright-infringement-lawsuit dept

If you read Techdirt, you're almost certainly familiar with Larry Lessig, the law professor at Harvard who (among many other things) has been an avid advocate for copyright reform and campaign finance reform, an author of many books about copyright and creativity, a well-known public speaker whose presentations are stunningly compelling, entertaining and informative, and the founder of some important organizations including Creative Commons. Of course, as an expert on copyright and creativity, and someone who's actually been involved in some of the key copyright legal fights over the past decade (tragically, on the losing side), you might think that a record label would think twice before issuing a clearly bogus threat to sue him over copyright infringement. Well, apparently Liberation Music was either unaware of Lessig's reputation and knowledge, or just didn't care.

Apparently, back in 2010, Lessig gave one of his many wonderful public talks, this one called "Open," at a Creative Commons event in South Korea. While that happened a few years ago, Lessig just put video of that talk online a few months ago. In that video, which is now down (for reasons explained below), there are a few brief clips of the Phoenix song Lisztomania, which was quite popular a few years ago. When the clip was posted, it appears that YouTube's ContentID noted two possible claims: one from Viacom and one from Liberation Music, though, oddly, Lessig was only informed about the Viacom one. Lessig disputed the Viacom block, but as YouTube was about to restore the video, Liberation Music took it one step further, and filed a full DMCA claim, demanding the video be taken down and kept offline (while many people confuse them, the ContentID match is not the same thing as a DMCA claim -- without getting into the details, the DMCA claim is a bit more serious).

In response, Lessig did exactly what the law allows, and filed a DMCA counter-notice, claiming that the work did not infringe. In response, Liberation emailed Lessig directly telling him that it would be filing a copyright infringement lawsuit against him in 72 hours if he did not "retract" his counter-notice. To avoid having an immediate lawsuit on his hands, Lessig retracted the notice, but since then has teamed up with the EFF to file for declaratory judgment that the video does not infringe and (more importantly) to seek DMCA 512(f) damages against Liberation for filing a totally bogus DMCA takedown notice.

There are a few things worth digging into here. For example, this is not the first time that Lessig has had videos removed from YouTube on highly questionable copyright claims. In fact, we've written about it happening twice before. However, I'm pretty sure that, in both cases, after Lessig countered the claims, the videos were restored. In both cases, it really looked like part of an automatic takedown, where the companies later realized there was nothing worth pursuing. What's different (and stunning) here is that Liberation decided to press forward with the obviously bogus claim, file the DMCA notice and threaten to sue if Lessig didn't drop his counternotice.

Next, in terms of the content of the video itself, while the YouTube video is gone because of the DMCA takedown, I'm pretty sure there's another copy here. The Lisztomania clips come in around the 37:50 mark. I wasn't able to fast forward to it, but Lessig has used it in other presentations as well. For example, you can see it in a TEDx presentation that Lessig did a few months earlier, with the key section of that video happening at 4:40 in that video. And what he's showing, actually, is not something that Lessig himself put together, but rather clips from a video that Julian Sanchez had put together -- a video we've written about a few times.

That's because it's a truly fantastic video that Sanchez put together in February of 2010, highlighting how copying was a key part of culture, using a really compelling example: First, there was a mashup video uploaded to YouTube by a user called "avoidant consumer," which mashed up the song Lisztomania by the band Phoenix, with a bunch of (mostly dance) scenes from a variety of John Hughes movies, leading with the classic Breakfast Club. The video is pretty good in a variety of ways. The music is catchy, the film scenes are classic (especially for people who grew up in the 80s), and (most importantly), the video and the music just fit together. I remember that video getting passed around like crazy. The whole thing became a meme.

Part of that meme, as highlighted by Sanchez, was that people of certain "tribes," who really liked that video then created their own versions, starting with a crew of hipsters in Brooklyn, followed quickly by some hipsters in San Francisco, and later by people all over the world. Those later videos no longer used the original John Hughes clips, but rather recreated the same clips within their own environments in a very fun way. Sanchez spoke about this form of culture and community and how the nature of this remix helped to build that community, and how our copyright policy rarely reflects that aspect.

Of course, late last year, Sanchez discovered that his own video had been removed by a copyright claim by Kobalt Music and Sony Music. He appealed, and it was rejected... but after the story got some attention, the clip was put back. If I remember correctly, the video was taken down yet again just a few months ago, but was put back soon after.

Meanwhile, soon after Sanchez put out the video, Lessig used Sanchez's video, again to highlight the power of remix and remix culture. In the South Korea presentation, Lessig is no longer using the same Sanchez video, and has actually expanded upon what Sanchez started, by including a variety of other cities the meme spread to. However, in almost every way, these are all clearly fair use. I'm assuming the Viacom ContentID match that Lessig first received was because of the use of some of the video clips in Lessig's presentation, including (perhaps) one of the John Hughes clips that very briefly show up (the video also includes a Daily Show clip, which Viacom owns -- so it could be about that). The audio claim by Liberation, however, is about the Phoenix audio. Given that, it would be almost impossible to see this as infringing.

While I may be predisposed towards seeing fair use more readily than some others, I'd be curious if any copyright maximalist can come up with a credible argument for how this isn't fair use. It involved some very brief clips used to illustrate a concept, including commentary from Lessig (talking over the clips). It wasn't for any commercial purpose, but for education. There is no way that it harmed the market for the Lisztomania song. If anything, it potentially increased interest in the song. I can't see how Liberation Music has any case at all. At all.

Of course, the really interesting part of this might not be the declaratory judgment claim for non-infringement (where the fair use stuff will play out), but rather the second claim -- for attorneys fees, costs and damages under 512(f). As we've discussed, unfortunately, it's been almost impossible to win a 512(f) claim over a bogus DMCA takedown. The entertainment industry has fought hard to make sure that sending totally bogus DMCA notices that censor content are basically unpunishable, unless they can show a willful and intentional decision to ignore fair use and censor the content. While it's not a slam dunk, it certainly appears that Lessig has a much stronger 512(f) argument here than other cases, because this isn't a one-time situation, but Liberation doubled down even after being told that Lessig believed the video was fair use. On top of that, by filing the lawsuit himself, and seeking the declaratory judgment, instead of being sued first, it means that Liberation can't just dismiss the lawsuit (they're now the defendant, not the plaintiff).

Given that it's Lessig, and with the involvement of the EFF, this is obviously going to be a case worth watching, but given the full details of the case, it may be a key one in establishing when 512(f) can be used to push back against bogus DMCA takedowns.

Filed Under: 512(f), 512f, copyright, dmca, fair use, julian sanchez, larry lessig, lisztomania, phoenix, takedowns
Companies: liberation music