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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"?
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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.
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... if I use multiple fades and ...
Wa-huh?
We're talking US law, right?
Fair Use is covered by Title 17 of the U.S.Code, section 107: "Limitations on Exclusive Rights: Fair Use". Note that the law does not talk about 30 consecutive seconds of one type of clip or entire lengths for other types of tracks. You are confusing details from a mish-mash cases with the actual law.
Fortunately Lessig is a lawyer, and knows the details of copyright law better than most anyone.
//TODO: Think of witty sig statement
Where does this come from and why can't it ever be debunked once and for all?
When I was studying broadcast, one of the first things they teach when talking about copyright is that fair use is more complex than you can "use 30 seconds of this" or "300 words of that." It's another tricky legal concept defined by "we know it when we see it."
The "300 words" misconception is mentioned directly on the Fair Use wikipedia article: http://en.wikipedia.org/wiki/Fair_use#Common_misunderstandings
And here is a good article about the non-existent 30-second rule (which probably comes directly from someone morphing the 300 words rule) http://studentpressblogs.org/nspa/the-non-existent-30-second-rule/
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.
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.
Where does this come from and why can't it ever be debunked once and for all?
I would call it a Meta Rule. A rule that is not what copyright says; but was proposed once as a guideline, and took on a life of its own through the power of word of mouth -- with various institutions codifying it. With various degrees of strictness --- if you are in the wrong place at the wrong time and use 31 seconds of a media recording; I suppose you might get expelled from some school, because you're over the limit.
Examples:
Halldavidson: This copyright chart form was designed to inform teachers what tehy may do under the law
Music: Up to 10% of a copyrighted musical composition may be reproduced, performed and displayed as part of a multimedia program produced by an educator or student for educational purposes. ---- Authorities site a maximum length of 30 seconds. See notes by congressman below.
Temple University: College of Liberal Arts: Fair Use Policy: .... .... Motion Media
Up to 10% or 3 minutes, whichever is less
Educators May use their projects for teaching, for a period of up to two years after the first instructional use with a class.
Music, Lyrics, and Music Video Up to 10% but no more than 30 seconds from any single musical work Any alterations shall not change the basic melody or fundamental character of the work.
WILEY: Permission requirements .... . A single quotation or several shorter quotes from a full-length book, more than 300 words in toto. ..... A single quotation of more than 50 words from a newspaper, magazine, or journal. .... Material which includes all or part of a poem or song lyric (even as little as one line), or the title of a song. ...
The Law of Fair use and the Illusion of Fair use Guidelines
Pikes Peak Community College: Copyright Portion Limits; Rules of the road: Music, lyrics, music video - Up to 10%, but no more than 30 seconds Arlington Independent School District: Copyright: Portion Limitations
CCSJ: Copyright Fair Use: 'Allowable portion for fair use'
Public Schools of North Carolina: Copyright in an Electronic environment:
St. Olaf College: Copyright guidelines
Music, lyrics, music video: up to 10% but in no event more than 30 seconds of an individual work
MolStead Library; North Idaho College The amount of work to be copied is based on the “portion limit” set for that “medium.” [....] In general, you should never use more than 30 seconds or 10 percent of a piece of recorded music. Ball State University, guidelines for educational media:
4.2.3: Music, Lyrics and Music Video : Up to 10%, but in no event more than 30 seconds, of the music and lyrics from an individual work. No alteration(s) of the music and/or lyrics are allowed.
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.