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

More Details Emerge On Key Legal Fight Over DMCA Abuse

from the oops dept

We recently wrote about a key legal fight over DMCA abuse and whether or not you can expect punishment for bogus DMCA takedowns under 512(f). The fact that even the MPAA has weighed in to make sure that there are basically no remedies for its faulty DMCA notices suggests how important this fight is -- even though at its core it appears to be a silly petty squabble among two bloggers who clearly hate each other. You can read back over the previous posts to get the details, but a few details have come out since the last filing, which may be quite relevant.

Gina Crosley-Corcoran's (the blogger who filed the DMCA notices) filing against Amy Tuteur (the blogger who sued claiming a DMCA 512(f) violation) made a few claims that, if true, would likely weaken Tuteur's case dramatically. The key claims were that neither of the hosts that Tuteur said had removed her blog/account had actually done so. Without the actual removal or loss of account, Tuteur's overall claim is much weaker, since some cases have argued that you can only win a 512(f) case if the content was actually removed in reaction to the DMCA notices. Crosley-Corcoran's filing claimed that the first hosting company, BlueHost, never took down the content or the account, but that Tuteur chose to switch accounts, saying that BlueHost only warned that it could take down the content or shut down her account, but that it did not. However, Tuteur has posted to her own blog a screenshot from Crosley-Corocran's own blog that includes not just a screenshot of Tuteur's blog being shutdown on BlueHost, but also where Crosley-Corcoran brags about BlueHost taking down the entire blog. So... for Crosley-Corcoran to claim in her filing that BlueHost didn't take down the site, when Crosley-Corcoran's own statements show that it did... I can't imagine that will go over well in court. Next up was the second host, Daring Host. Crosley-Corcoran's filing includes the claim that Daring Host told Tuteur it had to cancel her account due to being unable to handle the traffic, not because of the DMCA issue. It even provided a deposition from the owner of Daring Host claiming that he was clear to Tuteur that it was the traffic issue, not the DMCA notice, that resulted in the closing of the account. Except... Tuteur has now posted an original email from Daring Host to her about the closing of the account, where it's quite clear that a key reason was the possible liability from the DMCA notice.

Amy,

I spoke with the lawyer I’ve used with my businesses earlier today about the situation with your website and it being targeted. He informed me that hosting your website is a liability on a few different levels which is a risk to my business. While I support your cause and understand the situation you are in, I will no longer be able to host your website due to the risk and liability it poses to my business.

I do not want to leave you and your website out in the cold because I can understand that fighting against the people who are targeting you is not an easy task. I have done some research for you and found a couple of different businesses that should be able to host your website better in terms of dealing with it being targeted.

The first host I’ve found is called Alibabahost.com. On their website they state “AlibabaHost provides freedom of content and speech. Regarding the DMCA complains, we forward them to you and you decide how to proceed next.”

Considering the only legal liability that had come up had been the DMCA notice, combined with the fact that he directly highlights how the first host he suggests handles DMCA complaints, it seems pretty clear that the DMCA takedowns and further threats of more takedowns was a (if not "the") driving force behind telling her to look elsewhere. Given that the deposition from the same owner, Nick Esposito, appears to conflict with what he directly told Tuteur, he may face some interesting questions as well from the court.

For what it's worth, Crosley-Corcoran appears to have shown up in our comments on the last post claiming:

I did not "brag" about my DMCA taking down her site. In fact, the court has the evidence (submitted by her side, ironically) showing me saying that I, quote, "wish I could take credit, but this was more than me." I knew then that the host did not take action to remove her site because of my DMCA, and she knew it too.

Given the screenshot above, this appears to be wholly untrue. She does appear to have very clearly bragged about the DMCA notice taking down her site. Also, there was a Facebook post from Crosley-Corcoran that talked excitedly about how she was spending the "legal fund" that she had solicited from her readers to help take down the site from Daring Host, and: "if she keeps on doing what she's doing, this will keep happening."

Also, while it's cut off at the end of that screenshot above, that original post from Crosley-Corcoran appears to clearly admit that she's using the DMCA notice not to stop copyright infringement, but to silence protected speech:

She could owe me statutory damages, but because I'm a fair and reasonable human being, my attorney and I felt it was best to discuss a non-monetary settlement with Amy and her lawyer. I'm not looking to be greedy — I simply wanted a resolution. In exchange for me not pursuing the damages, we wanted Amy to agree to stop personally attacking me. It was that simple.

Combine all of that, and it seems like a pretty strong argument that Crosley-Corcoran used the DMCA to silence criticism, rather than for stopping copyright infringement, and that she knew and celebrated that fact publicly, contrary to what she stated in her filing and in our comments.

Filed Under: 512f, amy tuteur, blog fight, copyright, dmca, gina crosley-corcoran
Companies: bluehost, daring host

Key Legal Fight Shaping Up Over The Legality Of DMCA Abuses

from the stay-tuned dept

You may remember that, back in January, we wrote about a blog fight between two women with very different views on childbirth, which then descended into a ridiculous copyright fight. I won't rehash all of the details, but the short version was that as a part of this fight, Gina Crosley-Corcoran posted a photo of herself giving the middle finger, and in posting it she told her rival, Dr. Amy Tuteur, it was "something you can take back to your blog and obsess over." Tuteur reposted the photo to her own blog, along with a blog post about Crosley-Corcoran. Crosley-Corcoran then yelled copyright infringement, at which point Tuteur's husband (a lawyer) explained to Crosley-Corcoran's lawyer what fair use meant (and also what an implied license is). And then... DMCA takedown notices started flying, leading Tuteur to change her web host twice. Furthermore, Crosley-Corcoran bragged about using the DMCA takedowns to silence Tuteur and get her blog taken down -- and (according to Tuteur's lawyer) Crosley-Corcoran's own lawyer admitted that she had no legitimate copyright claim.

As we noted in our post, if there ever were a case to explore the punishment for violating the DMCA, this seemed like a good one. The key to this, of course, is 512(f) of the DMCA, which says that if you make a material misrepresentation in a DMCA takedown, you can be liable for damages, including costs and attorney's fees. However, at the same time, we noted why it's almost impossible to get someone punished for a bogus DMCA takedown. Still... the evidence on this case seemed so extreme, with Crosley-Corcoran more or less telling the world that she was abusing the DMCA specifically to silence Tuteur, we thought it actually had a chance.

But then, a month ago, the judge in the district court in Massachusetts made a bizarre ruling rejecting the 512(f) claim in such a way that suggested no 512(f) claim would likely ever survive. It was bizarre in a few different ways. As Eric Goldman noted in his discussion of the ruling, the court was only supposed to be looking at a separate issue, involving the jurisdiction of the court over the case, but simply chose to go ahead and effectively rule on the key parts of the case, even though neither party had briefed the key issues. Among other things, the court focuses just on the first DMCA notice, and not the subsequent ones or the blatant statements of plans to keep using the DMCA to keep Tuteur's entire blog offline. Goldman calls it "the most bizarre Article III analysis I've seen" because even though the court says that Tuteur has a plausible fair use and implied license claim, that doesn't matter, because the court argues that the DMCA filer doesn't need to pay attention to that:

there is no requirement in the DMCA that a notice-giver inform the service provider of an infringer's possible affirmative defenses, only that she affirm her good faith belief (as appears to be the case here) that the copyrighted material is being used without her (or her agent's) permission

That's not actually what the law says. And it's not actually what other courts that have ruled on this issue have said. At the very least, the court, recognizing that no briefs had been filed on the subject, gave Tuteur 21 days to respond. She did so with a long and detailed filing that reminds the court that this isn't about just that one DMCA filing, but a lot more. And also highlighting that (a) the DMCA isn't limited to just cases where things are posted without permission and (b) the other cases have said that a filer needs to take fair use into account. As her filing notes:

If fair use and license can be ignored when filing a DMCA takedown notice, persons like the Defendant (and, indeed, far more powerful organizations), would have a safe haven to freely muzzle their critics by literally chasing them off the Internet. A victim – who did nothing unlawful and whose acts were authorized by the Copyright Act – would be left without recourse and without a voice.

On the same day, the EFF along with Harvard's Digital Media Law Project also filed an amicus brief explaining why the court is simply wrong about the DMCA abuse clause. After listing out four different cases that came to a different conclusion than the judge in this case, it notes:

The DMCA requires the copyright owner issuing a takedown notice to affirm that she has a “good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” 17 U.S.C. § 512(c)(3)(A)(v) (emphasis added). “The fair use of a copyrighted work . . . is not an infringement of copyright,” 17 U.S.C. § 107. An allegation that a copyright owner issued a takedown notice knowing that the use in question was in fact authorized by law, and/or that she had not formed a good faith belief to the contrary is, therefore, sufficient to state a claim under Section 512(f).

This is the fundamental mistake that the court made. The DMCA doesn't say that you can only be punished if the you didn't have permission -- but if the use is not authorized by the law. And, the law clearly states that fair use is not infringement. Thus, fair use is authorized use even if it doesn't involve permission.

Crosley-Corcoran's lawyers apparently were not at all pleased to see the EFF and the DMLP jump in on this case, and proceeded to quickly oppose the entire brief, arguing that it shouldn't be allowed in the case. The reasoning? Apparently, that Tuteur has good enough lawyers already and doesn't need any support from the likes of the EFF or Harvard:

It is rare – perhaps sadly so – that one has both the opportunity and a reason to praise the litigation skills of opposing counsel. This, then, is something of a unique opportunity. Attorney Beck, a former partner with the national law firm Foley & Lardner LLP, and Attorney Riden, a former senior counsel to Foley & Lardner, have, collectively, almost 40 years of sophisticated litigation experience. Among his many accolades, Attorney Beck is AV rated by Martindale-Hubbell, a Chambers recognized attorney, a Massachusetts Super Lawyer, a Top 100 New England attorney, and a nationally recognized authority on trade secret and non-competition law. Attorney Riden is a Massachusetts Super Lawyer, a recipient of the Best Lawyers designation, a frequently quoted legal authority, and a former appellate law clerk. They are, in short, eminently qualified to represent the interests of Plaintiff in this action and to fully brief the issues raised by this Court’s Order of April 10, 2013, requiring them to show cause why the present action should not be dismissed.

This being the case, the addition of two more legal Goliaths will do little to advance this Court’s understanding of the issues raised (which do not seem to be so complex as to cry out for the assistance of non-parties), and instead will only needlessly multiply the costs of an already overly-costly litigation. For the reasons stated herein, Defendant Gina Crosley-Corcoran respectfully requests that the non-party requests for leave to file an amicus brief be denied.

There is a legitimate argument to be made that, especially at the district court level, if an outside party filing an amicus curiae brief that is only repeating the same arguments as a party in the case, it is not appropriate. However, it does seem that the EFF/DMLP briefing does raise a few different key points than Tuteur's brief, which focuses much more on the specifics of her situation, while the amici brief covers much more generally the policy issues behind section 512(f) and more of the legal history there. It seems, especially given the court's apparent misreading of the law in its initial order, that it makes sense to include the brief.

Finally, on Thursday, Crosley-Corcoran filed her response to Tuteur's argument, in which she claims (of course) that "the court had it right the first time." Except, the law is pretty clear and this filing has it wrong. I don't really see how anyone can argue that. From there, they make two key arguments. The first is that, despite the fact that Tuteur ended up having to switch hosts twice, neither switch actually involved a host taking down the content in question, and thus she cannot claim any damage from the DMCA takedown notices, bogus or not. Specifically, the filing argues that Tuteur chose to move from the first host, BlueHost, after she sent a counternotice and after BlueHost had said it would take no action (though, this is after BlueHost had warned her earlier that if she didn't remove the content, it could close down her account). It then says that the move away from the second host, DaringHost, was because the site was getting too much traffic, and the owner of DaringHost, supplied a deposition stating that he had explained this to Tuteur.

This absolutely does weaken Tuteur's 512(f) claim, because it certainly decreases the damages caused by the takedown notices. But it still does ignore the two key points pushing back on this: Crosley-Corcoran's lawyer admitting that there was no legitimate copyright claim and Crosley-Corcoran herself bragging publicly about using the DMCA to silence Tuteur.

Separately, the filing goes back to the same point that we've discussed before about why it's so difficult to win a 512(f) case: the use of the "subjective bad faith" standard. Of course, one would think that Crosley-Corcoran's own statements would pass that bar. However, the filing insists that her lawyers took fair use into account, and simply decided that Tuteur's use didn't qualify (which seems to go against what Tuteur claims Crosley-Corcoran's lawyers told her). Crosley-Corcoran's filing conveniently ignores all of that and says, basically, "of course we considered fair use and rejected it" so the 512(f) claim is dead.

If that's allowed, then that effectively makes 512(f) a useless law, because all anyone has to say is they considered it before sending a bogus DMCA takedown and they can get away with it. That's clearly not what Congress intended with the law, otherwise why include it at all?

Either way, this case is shaping up to be a key one to watch in determining whether or not there are any teeth at all (even little ones) associated with 512(f) in providing a tool for those who have been attacked with bogus DMCA filings.

Filed Under: 512f, amy tuteur, copyright, damages, dmca, dmca abuse, fair use, free speech, gina crosley-corcoran, takedowns
Companies: bluehost, daringhost

Putting Together A Database Of Bogus DMCA Takedowns

from the interesting-move dept

Over the years, we've written many, many stories of completely bogus DMCA takedowns. It's a pretty common occurrence. Sometimes it's done accidentally by clueless bots (or clueless humans). Sometimes it's done maliciously. We just had a case that appeared especially egregious, involving a site copying another sites' articles, then claiming copyright over the originals in order to take down the original stories (which just happened to paint a professor in a very poor light for allegedly faking parts of some high profile research). That story inspired David Weekly (founder of PBWiki, HackerDojo, SuperHappyDevHouse and a few other things) to do something: he set up the site DMCAInjury.com, which is just a simple Google spreadsheet input form at this point, but hopefully can become something much more.

David has pointed out that it would be handy to have some more cases in which the filers of bogus DMCA notices are actually punished for their actions under section 512(f) of the DMCA. As we discussed last year, it's very difficult to win a 512(f) claim, in part because the language is so vague and so far courts have interpreted it pretty narrowly.

However, as David points out, there have been some successful cases, including the case that the EFF ran against Diebold nearly a decade ago. David was actually one of the plaintiffs in that case. If you don't remember, someone had leaked some internal documents from Diebold (makers of e-voting machines) which showed the company was well aware of massive security problems with their machines. Diebold first tried to claim the documents were fake and then used the DMCA to claim they were covered by Diebold's copyright and that it could issue takedowns on them. As you might have noticed, those two claims would contradict each other. Either way, a judge pointed out that:

"no reasonable copyright holder could have believed that portions of the e-mail archive discussing possible technical problems with Diebold's voting machines were protected by copyright."

The problem, of course, is that there just aren't that many such cases (there are a few scattered ones, including the Lenz case we've been talking about recently). So finding such cases, and actually having them go to court could be useful -- though I still think strengthening the ability to punish bogus DMCA notices would be helpful (well, and changing the entire DMCA takedown process, but that's another post for another day). Via email, David admits that this is just a "trial balloon" to see if it turns up any interesting cases of bogus takedowns that might make for good 512(f) cases. And that would be good, though the weaknesses of 512(f) still make it pretty difficult to find ideal cases, even as we see DMCA abuses all the time.

Even with that being the case, if this effort doesn't turn up bogus takedown notices for new cases, at the very least, perhaps it will create a useful dataset to explore the nature and frequency of bogus DMCA takedowns.

Filed Under: 512f, bogus takedowns, copyright, dmca, takedowns