Lessig triumphs in fair use battle

Back in August 2013 Lawrence Lessig filed a federal complaint after YouTube forced the Harvard University law professor and Creative Commons co-founder to take down a video of a lecture that featured people dancing to a copyrighted sound recording. Supported by the Electronic Frontier Foundation (EFF), Lessig said: “The rise of extremist enforcement tactics makes it increasingly difficult for creators to use the freedoms copyright law gives them. I have the opportunity, with the help of EFF, to challenge this particular attack. I am hopeful the precedent this case will set will help others avoid such a need to fight.” The complaint stems from a 2010 lecture Lessig delivered in South Korea on cultural and technological innovation. He presented clips of user-generated videos showing people dancing to Phoenix’s single “Lisztomania” which was a popular meme at the time started by user “Avoidant Consumer,” who combined scenes of people dancing from several movies with the song playing in the background. The video went live last June but complaints from Viacom and Australian-based music publisher Liberation Music via the Digital Millennium Copyright Act prompted YouTube to remove Lessig’s lecture twice. Lessig filed a complaint disputing Viacom’s action to block the  video on YouTube and had the video restored on June 30th. That same day, Liberation Music filed a complaint to YouTube, and the video-streaming platform informed Lessig that it had again removed his lecture video. Lessig made another complaint to YouTube, but on July 8th, Liberation Music threatened to sue him if he did not retract his complaint, which he eventually did but then issued the lawsuit which ran through the checklist of fair use, making a case for why the lecture falls under that distinction: he used a small proportion of the song, his lecture doesn't compete with the market for the song in any way, and the lecture is an entirely new creation. Phoenix wanted its song to entertain and make money; Lessig's lecture was educational, and neither he nor Creative Commons, the sponsor, made any profit.

Liberation Music has now reached a settlement with Lessig. The settlement includes an admission that Lessig had the right to use a track by the band Phoenix, and Liberation admitted Lessig's use of the song was protected by fair use - and has agreed to adopt new policies around issuing takedown notices. The label has promised to work with Lessig to improve its YouTube and copyright policies to make sure this sort of fiasco doesn't happen again. Under its previous policy, Liberation allowed a single employee – without proper legal knowledge or even viewing the video in question – to rely on the automated system to threaten a lawsuit. In future Liberation will not issue takedown requests without human review, according to the Electronic Frontier Foundation. Liberation will also pay costs.

Phoenix, the band whose copyrighted music had been so horrendously violated, but had not themselves taken any action, had this to say in a statement:

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 sometimes but the contemporary experience of digital re-meditation 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.

Phoenix

Photo: Joi Ito