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Newest YouTube User To Fight a Takedown: Lawrence Lessig
onehitwonder writes "Lawrence Lessig has teamed with the Electronic Frontier Foundation to sue Liberation Music, which recently demanded that YouTube take down a lecture Lessig had posted that features clips from the song 'Lisztomania' by the French band Phoenix (on Liberation Music's label). Liberation claimed copyright infringement as the reason it demanded the takedown, but in his countersuit, Lessig is claiming Liberation's 'overly aggressive takedown violates the DMCA and that it should be made to pay damages,' according to Ars Technica."
(Rhetorical question ahead)
Why do we never hear what the artists, the ones who actually made the song or tune, have to say about this "infringements"?
on the contrary. Those who post overly aggressive takedown notices should be jailed. No fines are needed.
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I had Warner Media try to takedown a video that was a conference/lecture at Duke on Fair Use by an artist that had been sued by U2; all because it contained a song that was at the center of the dispute, which was what that section of the lecture was about. I have rarely had as much fun as handing them their ass simply by pointing out that it was a *lecture*........about Fair Use..... in regards to *that* song. They never tried again.
Lawrence Lessig laments Liberation's 'Lisztomania' limitations. Litigation likely.
I obviously can't speak for the band Phoenix, but I enjoy their music and based on my personal interpretation of the "spirit" of their work, I find it hard to believe they would have ever endorsed this action. Of course they themselves didn't, it was certainly yet another of these industry lawyers at the ironically-named "Liberation Music" who is responsible. I'm only saying this because I imagine it has to be terribly frustrating for a group of musicians to potentially have their reputation and name damaged because of such a ridiculous abuse of the DMCA.
When a li'l old professor made fair use of a small clip of a band's music, maybe giving them free PR in the process, the band's label turned into Big, Bad Bullies and slapped a Big, Legalistic Testosterone-Fueled DMCA Notice to said professor.
Well. It so happens, that the l'il old professor is an expert in Internet Copyright Law at Harvard Law School. And according to his complaint:
17. Professor Lessig has been named one of Scientific American's Top 50 Visionaries
So, said professor turned into a Big, Bad Bully and slapped a Big, Legalistic Testosterone-Fueled Civil Complaint Seeking Damages against the band's record label.
Remember... we're the good guys here!
Fair Use is pretty well defined, in a nutshell you can use 30 consecutive seconds of audio before it becomes an infringement, or the entire track in the case of a narrative or analysis of the track. Clips? This is where it gets interesting; if I use multiple fades and play a track through, am I infringing? I would say not, others might disagree.
On the other hand, I've used a track with no fades, from the first bar to the last, as a theme for a Youtube video. UMG put in a DMCA complaint, my response was that as far as I was concerned, the only person who had any right to complain if he felt the need was Scott Stapp, the individual who wrote the song. I contacted Scott Stapp through his agent, he wrote back himself and pretty much said "I've seen the video, I like it, you go for it."
Big label publishers can go fuck themselves. I'll engage with the artist, not the museum.
Oh, little tip for anyone wanting to use an instrumental background: The KLF back catalogue is all Public Domain, has been since 1993. Some great stuff in there, and you can use any DMCA notices that come as a result to lay harassment charges against the labels.
Operation Guillotine is in effect.
I do hope they manage to set a precedent with this case and pry open the door to a flood of such awards. even if they're small amounts, it'll at least fool me into believing that maybe the system sometimes works?
I work for the Department of Redundancy Department.
from the fine article:
So, he had video clips of people dancing to underscore the point of the presentation. People dancing in random parts of the world is the original content, and material (hell, the point) to his presentation. The non-profit/no-loss part is COMPLETELY relevant, as it is two of the four tests used in determining if something is fair use:
--United States Copyright Office
finally, you could just watch the presentation and judge for yourself.
As it's not clear how long the clip was
Fair Use doesn't specify what percentage is ok. In some cases 100% of the original can still be fair use.
or how it was used
FTA:
... and snippets of that song featured prominently in Lessig's lecture. According to the complaint, Lessig showed clips of different groups of amateurs dancing to the song in Brazil, Israel, Brooklyn, Latvia, and Kenya.
Looks like it was pretty clear how it was used.
I actually have seen a lecture of his from when he released Free Culture back in 06 I believe? I was in high school and went to see him give a speech at a museum. He used a lot of music for his presentation, but every bit of it was a clip to demonstrate a point and served a solid purpose to his discussion.
What's next?
For an encore they should spitball Chuck Norris in the back of the head at a steak house.
My God, it's Full of Source!
OUTSIDE_IP=$(dig +short my.ip @outsideip.net)
The non-profit/no-loss part is COMPLETELY relevant, as it is two of the four tests used in determining if something is fair use:
Yeah, but that's only one component of the case here. The video can get reinstated fairly simply under fair use provisions, but Lessig will have to prove the rightsholder sent the DMCA takedown in bad faith to win damages.
The DMCA makes illegal the process of knowingly abusing the takedown notices. The 3rd party must oblige the DMCA notice and take the vid down, then a counter notice by the alleged infringer saying they want the video back online can cause and reinstatement of the video by a 3rd party who is no longer culpable for the alleged infringement being that they complied with the DMCA. At that point the alleged infringer has taken responsibility for the content.
I want Copyright abolished, but this is actually a part of the DMCA that I like -- It gives you a warning instead of a lawsuit right out of the gate, and a chance to not re-instate the video. My issue, and it seems Lessig's issue, is that these takedown notices are being sent apparently without review of the alleged infringing content -- Any fool copyright holder would realize a presentation about copyright law shouldn't be DMCA'd, that's asinine. I mean, sure it might be found infringing because fair use is so fuzzy, but it's dumb even from a PR nightmare standpoint...
Additionally, the 3rd party often times provides no means for the alleged infringer to reinstate the video, thus the 3rd party often complies with only part of the DMCA takedown procedure, omitting the reinstatement procedure, and given their TOS they can refuse to display content at their discretion. IMO, that may weakly classify as a form of editorial oversight of the content -- Videos sent takedowns staydown... Were I a judge I would strip Safe Harbor protections from such entities that don't treat both sides of the DMCA dispute equally by implementing the full process of takedown and restoration.
Note: It's been a long time since I had a DMCA takedown of a Youtube video, so I'm not sure if Google now has some facility in place to get the vids back online or not, but such didn't used to exist...
It's a hard case to make that the DMCA takedowns were intentionally abusive or in bad faith. I would say that those rights holders that use automated detection and filing of DMCA takedown requests MUST know the possibility exists that such notices can affect Fair Uses. That means it's known in advance that some DMCA takedowns are going to be fraudulent. That means violation of the DMCA.
As long as all the DMCA takedowns are against infringing users no one can make the case that the system is being used unfairly (no harm = no foul). However, once the takedowns sent with little or no human review DO affect Fair Use then said user can bring a case of DMCA abuse against the rights holder.
Of course, I'm just speculating on Lessig's probable case. The main point is that it's a hard case to make because the rights holder filing DMCA takedown notices can say, "Well, I didn't know for absolute sure the notices were fraudulent." IMO, there's no way they could not have known some would be fraudulent, and here is the fraudulent DCMA use they knew might happen, and did. It will be up to the courts to decide. Such erroneous takedowns have occurred many times; I'm just glad someone is actually taking a stand against them at all. I couldn't have picked a better guy for the fight than Lessig.
IAs it's not clear how long the clip was or how it was used (was it the subject of the lecture? was it background music? Was it intro music?) we're probably missing the most important facts. Fair use doesn't mean you get free backing or intro music, for it to be fair use, there has to be original content involving that song.
You ought to read the actual complaint. Lessig went over every single one of your points in detail, including how it was used, how long it was used, and went point by point over the Fair Use Doctrine about why his use of the clips were very clearly fair-use.
He even went further to state that Liberation Music has lawyers who are well versed in copyright law and practice that particular specialty of law on a full time basis, thus they should also be well versed in the fair-use doctrine in particular (or be made fools in front of a judge for their decided lack of knowledge in regards to that topic). Essentially, he wants to teach these guys an expensive lesson in copyright law and have a judge be the lecturer.
I would say every single complaint you have made here is based off of your own ignorance, not anything that Mr. Lessig failed to provide. Frankly, these guys stepped into the wrong bear trap here and went after the wrong person. For crying out loud, Lawrence Lessig has argued copyright cases before the effing U.S. Supreme Court. I'd say he knows what the hell he is talking about. He certainly would be willing to meet in person members of that court again and knows how to get a case there if necessary.
The best thing that Liberation Music could do right now is to simply drop the stick and back away real slowly..... with a million dollar donation to the EFF if they would be so kind. Otherwise, they are royally screwed and clueless as it sounds.
The largest problem I've ever had on YouTube is having the commercials and banner ads stripped off of a video because I didn't include proper links to where I obtained licensing for supposed copyrighted content. Basically I had to cite everything or clearly claim that all of the content I was producing was original. By making those citations (including noting what software I used to create the video), YouTube didn't have a problem and accepted my videos.
Yeah, YouTube does have the system to put things back up in a copyright dispute, although I am going to treasure Lessig's reply as precisely what should be sent in response if I feel I have not violated copyright. I'm usually very careful about copyright infringement and prefer music and other content that is available under an open source license of some sort. I'm glad that YouTube makes you go through the hoops on stuff like that, as it really does make my videos a little more professional as well. Besides, the guys who stuff I'm using in this manner deserve credit for the effort they made that I reused... and I'm very careful about making sure I'm using a license that permits commercial reuse as well.
Fair Use doesn't specify what percentage is ok. In some cases 100% of the original can still be fair use.
The situations that permit 100% content reuse are pretty narrow and typically fall under either personal fair use (it is legal to make personal copies of something you own as long as you don't give it to somebody else) or educational (such as a teacher making a hand-out in a classroom or showing a video to the class). These applications also have all kinds of weird exceptions to exceptions and is a minefield to walk through if you aren't careful. A great many times I've seen assertions of fair-use privileges claimed on YouTube and on web pages that simply don't even remotely apply.
Wikipedia used to be awful in some situations until some of the more clueful editors started to crack down on the situation and narrow the scope of permitted fair use considerably. I think they've gone too far in that regard in reaction to the previous loose standards, but that is another fight elsewhere. Most of the time when you see somebody who has copied something 100%, either they have an explicit license to make that copy or they are ignorant (perhaps willfully ignorant) of the laws involved.
Try to read the dissenting opinions in that case too. They are pretty powerful stuff, and with the kind of split decision made by SCOTUS, it definitely opens an opportunity for the concept to be revisited and the decision overturned in a future case. I'd call that something huge, even if it is just a modest victory after a fashion.
I'd also say that if Lessig ends up back in the Supreme Court, particular on this issue, he will be much better prepared and just nail the case. I seriously doubt he will even get that far as I think a federal judge is going to be doing a major smack down in this situation.
I cannot believe that the law didn't say something to the effect, limited in nature and not to exceed "X" amount of years. The non-dissenters argued that as long as the copyrights werent perpetual then that wasnt a problem. What the heck does perpetual even mean? As long as it's not "forever"? That is, as one dissenter stated, virtual perpetual extensions.
Off topic? I don't know. I think the poster's genius just went over the moderator's head.
Wow, that was a tortured vortex. I was losing track of which puppet hand had grabbed the microphone, or if it was just one especially wishy-washy devil's advocate.
If the bar is bad faith, we've got a problem, commonly known as Hanlon's razor:
The party being sued just needs to slit their own throat with Hanlon's razor (duh I'm stoopid) and your case melts away. Unless it takes confessing to a level of stupidity sufficient to get the other party's lawyer disbarred. Then things get interesting.
However, I don't think Hanlon's razor properly belongs in the court room in the first place, where it would more likely be the other way around: never attribute to stupidity, faulty memory, or the dog eating your homework what can adequately be explained by malice, tactical dithering, and premeditation. The line between culpability and incompetence in the courtroom is more gerrymandered than FLA. 5.
Imbalance of Power
By comparison, the dividing line between pornography and naked flesh seemed so obvious that some judge muttered to himself absent-mindedly "I know it when I see it". I suspect that same judge would give his right arm to be able to reliably discern when the defendant protests too much about his own imbecility.
It's an extremely tricky business to write laws which boil down to where having a clue self-incriminates. It's pretty easy to flush clue down the toilet for the duration.
In my opinion, a standard of abuse needs to be set such that ignorance of the law is no excuse, reducing the scope of honest error to where the nuance of the law itself is hark to grok as applied to the relevant circumstance.
Wikipedia informs me of N.C. 12 that `The Wall Street Journal called the district "political pornography."` Note that Democrats holding a huge majority in one seat benefits the Republicans in every other seat they win by a narrow margin.
But your honour, my hand slipped!
Do have medical records to show that you've sought treatment for this dangerous condition?
Uh, no. It only happened just that once.
Fascinating. I've heard that three times already this morning. What I have here (pulls out Hanlon's razor) is a very sharp and heavy blade which you shall hold above your own head for ten minutes. If it slips out of your fingers during that interval, you will receive my sincere apology and a favourable verdict to go along with your stitches.
He clearly forgot to add one of those notes on the YouTube video, like "All rights belong to their respectful owners" or the amazing "Under the copyright act of 1976, this video may stay up (if democracy still exists) as it is for DEMONSTRATION PURPOSES ONLY".
Just search for your favourite artist name + "full album" on YouTube for more gems.
And? Just because it's non-profit, that doesn't mean it doesn't diminish the value or market.
"Why should I pay a sum to licence some music when there are a bunch of other videos using it for free".
Of course, I'm just speculating on Lessig's probable case. The main point is that it's a hard case to make because the rights holder filing DMCA takedown notices can say, "Well, I didn't know for absolute sure the notices were fraudulent."
It seems that is going to be one freaking hard claim for them to make, given that they went on and threatened to sue Lessig after they got his counter-notice. From TFA:
The fact pattern is different [from an earlier dispute involving the EFF]: Universal immediately backed down over the Lenz video, but still got slapped with an EFF lawsuit. Liberation, by contrast, threatened Lessig with a suit even after getting his counter-notice, which convinced him to keep his video offline until he was prepared to go to court.
That probably isn't something you should admit at all, and especially not in a forum chock full of people who are actually educated on the subject matter.
Guns don't kill people; Physics kills people! - John Lithgow as Dick Solomon on Third Rock From The Sun
It's a hard case to make that the DMCA takedowns were intentionally abusive or in bad faith. I would say that those rights holders that use automated detection and filing of DMCA takedown requests MUST know the possibility exists that such notices can affect Fair Uses. That means it's known in advance that some DMCA takedowns are going to be fraudulent. That means violation of the DMCA.
There's no evidence that the issue in question here is about automated notices. But the big controversy hanging over automated takedowns is, as I understand it, far more interesting than mere "bad faith" provisions. A DCMA takedown notice is supposed to be a sworn statement from an individual stating, essentially, "I am the copyright owner (or an authorised agent thereof) of material I believe has been infringed upon". The DMCA is supposed to be safe from abuse, because a sworn statement that is known false is perjury and criminally prosecutable. Someone can be jailed for submitting a false claim. Most DMCA takedown notices submitted to YouTube etc are automated and therefore do not actually constitute a genuine DMCA notice... and isn't it therefore fraud to submit such a notice under the false pretence that it is a DMCA notice..?
Got them moderator blues I blieve I walk out the do', With these mod-points I been gettin', I 'most never post no mo'
As it's not clear how long the clip was or how it was used (was it the subject of the lecture?
If you read the article, it was clear he did not use the whole song but only parts of it.
we're probably missing the most important facts. Fair use doesn't mean you get free backing or intro music, for it to be fair use, there has to be original content involving that song.
The original content was the Lessig's lecture.
The non-profit / no loss to the record label doesn't seem relevant.
A common fair use is for non-profit educational purposes. Providing a free lecture falls under non-profit educational use for sure. If Lessig had charged then it's a gray area of education or for-profit purposes.
That could protect you against damages or criminal prosecution but not against a takedown.
In Lenz v Universal a court has already ruled that the copyright holder must take into account fair use before issuing a takedown.
It would also be trivial to argue that even if he didn't make any money from the lecture and putting it on youtube, it serves as a valuable bit of self promotion that could help him make money.
Lessig could also be an 12 dimensional alien brainwashing the world with his ideas about copyright. These do not matter to the facts at hand.
The educational aspect is another dead end avenue, all the record label would have to show is that they've licensed out their music to educational material in the past.
For the purposes of education, the record label cannot exclude anyone. Even if the record label has licensed before, for educational use is fair use for anyone. The record label can't keep it's songs from being used by religious educational institutions or minority ones or liberal ones or conservative ones.
Ultimately, it's just going to come down to the length of the clips and/or if they're used properly which is something we can't tell.
No it doesn't.
Well, there's spam egg sausage and spam, that's not got much spam in it.
...(including noting what software I used to create the video)...
I've never uploaded anything to Youtube, but what does it matter what software you used to make your video?
As weird as it sounds, if you use some software to produce copyrightable content (computer software, music, movies, etc.), the author/publisher of that software has a claim upon your work. People who produce such software would wisely add a license that permits unlimited use of anything you make with that software, but none the less there is a copyright claim to be made.
Strangely this claim was originally asserted by compiler developers who established a precedence that they had a copyright claim upon any software produced by their compiler. Other kinds of copyrighted content also have this same problem. YouTube appreciates you noting every possible claimant of copyright upon anything you upload, and your demonstration that you have clearance and licenses for reusing that content.
Admittedly it isn't something that copyright trolls typically go after at the moment, but it is something of concern. By at least acknowledging that software, particularly for stuff that is GPL'd software, it is also a good karmic thing to do by giving back to those who have helped you out... especially if you include things like URLs and kudos to project leads or specific developers. I'm not really certain that you legally need to go that far, but I think it is a good thing and the better YouTubers who have done that are people I admire as well. Besides, what harm is there to spend another 5-10 seconds on a video thanking people who have produced software that is helpful to you? Furthermore, I don't mind showing those who are watching my videos that they can use that same software for their own purposes and make videos just like me with relatively low cost.