While it is a good idea to enforce your copyright against unscrupulous Internet thieves, some copyright holders overreach their authority to their own detriment. Take the French Band “Phoenix,” and their label Liberation Music, who threatened to sue one of the most famous and well-respected copyright attorneys in the world; Harvard Professor Larry Lessig.
Our story begins with a lecture Lessig gave on ways copyright law needs to adapt to the Internet age. In his lecture, he shows examples of artists who share their culture and remix other people’s creations. One of the examples he shows is a series of remixes using Phoenix’s song “Lisztomania”. Someone had remixed that song with clips from the iconic ’80s movie The Breakfast Club. The remix went viral. As you might expect, this inspired other videos, of which Lessig showed more examples. His lecture was posted to YouTube.
YouTube has a software robot that scans posted videos for copyrighted songs. According to NPR, “many labels and artists have agreed to let songs stay up in return for a cut of the money that YouTube gets from ads it runs with the videos — but some labels, like Melbourne-based Liberation Music, which owns the rights to “Lisztomania,” just want them taken down.
Liberation Music sent a letter to YouTube asking for Lessig’s video to be removed. In order to ensure that they are not embroiled in a copyright lawsuit, YouTube follows the provisions of the Digital Millennium Copyright Act (DMCA), which provide a “safe harbor” for sites that have a DMCA registration and promptly remove offending works at the request of a copyright holder. So YouTube removed the lecture. However, the DMCA also says that if the uploader disagrees with the copyright holder as to whether the work is infinging, the online site can repost the material, pending the legal outcome between the copyright holder and the uploader.
Lessig, being a very competent copyright attorney, was well aware that some uses of copyrighted material is considered “fair use” and not subject to legal action. The Copyright Act prescribes several activities as fair use; criticism, parody, news reporting, research, teaching, library archiving and scholarship, and critique or commentary. Lessig’s considered the use of the song as a critique and so a fair use.
“If I’m using it for purposes of critique, then I can use if even if I don’t have permission of the original copyright owner,” he says.
Liberation backed down but Lessig didn’t let it go. He wanted a greater victory; for companies like Liberation Music to stop using automated systems to send takedown notices.
Takedown notices are extremely common across many types of Internet sites and in many cases, these companies are very aggressive, demanding exorbitant fees for the presumed offense. These notices are worded in way that will scare people into paying. Since few people don’t know their legal rights, they don’t know what actions to take. Also, the fees demanded are often less that required to hire an attorney. For example, one stock photography company will typically demand an $800 fee for unauthorized use of a stock photo. They go on to offer a discount, $450, if paid within 14 days, otherwise, the infringer will face legal action. With nobody to guide them on fighting back, people are forced to pay the ransom.
Lessig wanted that kind of extortion to stop, saying that these are “basically bad-faith lawsuits, . . . threats made fraudulently or without proper basis.” So he countersued and won.
In a statement, Liberation Music admitted Lessig’s use of the song was protected by fair use. The Company will also pay Lessig an undisclosed sum for the harm it caused, all proceeds gong to the Electronic Frontier Foundation, a digital civil rights group, who defends digital rights. Liberation Music also agreed to adopt new policies around issuing takedown notices.
Lessig said in his own statement; “Too often copyright is used as an excuse to silence legitimate speech. I’ve been fighting against that kind of abuse for many years, and I knew I had to stand up for fair use here as well. Hopefully, this lawsuit will send a message to copyright owners to adopt fair takedown practices — or face the consequences.”
A better understanding of copyright law and a little common sense by Liberation Music, could have avoided this multi-year battle. Maybe Lessig’s actions will make companies review their automated takedown procedures, or at least very least, alert people in similar situations that they can fight back.
Please repost this to your social media so we can get the word out.
- Lawrence Lessig Settles Fair Use Lawsuit Over Phoenix Music Snippets (eff.org)
- Phoenix on Lessig and Lisztomania: “We Support Fair Use of Our Music!” (boingboing.net)
- An important development for fair use on YouTube (digitopoly.org)
- A Win For Fair Use After Record Label, Copyright Lawyer Settle (wnyc.org)