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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"?
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.
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
So, said professor turned into a Big, Bad Bully
Wrong. Standing up against a bully doesn't turn you into one.
`echo $[0x853204FA81]|tr 0-9 ionbsdeaml`@gmail.com
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.