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

The CopyKat - small, furry - and hungry

David Carson

There is a well written report on the Music Industry Newswire reporting on this year's Institute on Entertainment Law and Business, co-sponsored by the USC Gould School of Law and the Beverly Hills Bar Association and is a symposium on the wide variety of legal issues affecting everyone involved in any aspect of show business.  In particular the report on David.O.Carson’s presentation stands out - not least his wry commentary on some of the acronyms for proposed and enacted legislation. David,  General Counsel for the U.S. Copyright Office, asked - who came up with FECA (Family Entertainment and Copyright Act)? And what was the thinking that led to the wording of the Protecting Intellectual Rights Against Theft and Expropriation act (PIRATE)? David also provided a neat review of the ongoing Google Book Settlement. Other panels included “Understanding Social Media: We’ve got an App for That”, “The Economics of Touring,” “Understanding Digital Distribution,” and “Marketing Artists in the New Millennium.”

Silly season: in our 16th August CopyKat we commented on the latest revelations on Prenda Law troll saga - and the TorrentFreak report that "evidence is stacking up that Prenda Law has been operating a honeypot in order to lure Internet users into downloading copyrighted material. The report highlighted that a subpoena returned by Comcast confirmed that a Pirate Bay user called “Sharkmp4″ is directly linked to the infamous anti-piracy law firm via Steel Hansmeier boss John Steele. TorrentFreak reproduced Comcast's response BUT - TorrenFreak then faced "a series of escalating legal threats" from Comcast's agents Cyveillance asserting copyright over the document. Thankfully sanity has seemingly broken out, with Cory Doctorow over on BoingBoing, who also covered the story, receiving an email from Comcast's Senior Director of Corporate Communications, Jenni Moyer, saying "I saw your post and wanted to let you know this notice was sent in error, and we have advised TorrentFreak to disregard it. We apologize for any confusion. Will you update your post with this information? Thanks.". All's well that ends well ....... hopefully!


 A Chinese court has ordered Sohu.com, one of China's biggest Internet portals,  to compensate the writer of romantic mobile phone messages for lost income after the Sohu sold his love notes without paying him his lawyer has revealed. The Shanghai No. 2 Intermediate Court ruled  that Sohu must pay writer Fu Zhanbei 100,000 yuan (approx US$13,000) for selling his work without permission and ordered the company to issue a public apology, his lawyer Wang Zhan said.

The California Copyright Conference has been tackling the thorny issue of the proposed settlement between the NMPA (National Music Publishers Assn.) and the major record labels which  will provide the labels with the opportunity to pay publishers possibly hundreds of millions owed for unpaid “pending and unmatched” copyright royalties and avoid 1.5% per month late fees that would otherwise apply. It seems many panellists and audience members questioned the deal including - and in particular whether a plan to distribute up to $174 million on a market share basis is fair to independent publishers - as well as questioning why there was an onus on artists for clearing up contractual problems - and the ongoing role of the huge US broadcast industry in extensive lobbying avoiding the implementation of legislation to make them pay to use sound recordings on their radio stations. More in the Conference Report here . 

Lawrence Lessig has 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 song. 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 it seems now fair use is (at least) in play and Lessig's lawsuit runs through the checklist of fair use, making a case for why his 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.

Moraine Lake, Alberta: "No, tar"

In the same frame is the fight  between Travel Alberta, a Canadian tourist organization, and Andy Cobb and Mike Damanskis, two comedians.  The comedians started an Indiegogo fund to raise funds for them to travel to Alberta’s Tar Sands.  They describe the location as “the most environmentally destructive mine on earth.”  The duo also created a video and spliced a piece of Travel Alberta’s travel advertisement into the feature.  This four second splice and the slogan “Remember to Breathe” were seemingly enough, under YouTube’s understanding of the DMCA, to take the video down - but the two funsters weren't about to give up and the duo has filed a counter-claim based on fair use and are now awaiting YouTube’s decision.  In the mean time, the comedians will keep their video up on the Indiegogo page and continue to receive contributions for the trip. More on the EFF website here.

And finally: further to our last CopyKat posting, Billboard have reported that Robin Thicke allegedly offered a substantial six figure dollar payout to the family of Marvin Gaye even though he has since filed a lawsuit claiming his song 'Blurred Lines' is not copied from a tune by the late soul singer.