EFF, Lessig battling copyright takedowns Lawrence Lessig and the Electronic Frontiers Foundation are joining forces to fight off what they see as DCMA-trolling from Australian record company Liberation Music. At issue is a lecture series Lessig put together for a Creative Commons conference in South Korea. The Harvard Law School professor's talk included short clips …
Irony of the name aside, I'm struggling to see what claim to the track they even have. Wolfgang Amadeus Phoenix was released on V2/Co-operative, which is a PIAS imprint. It hasn't been UMG for years, and Liberation are only tangentially related to UMG at best, as their Australian distributor. Even assuming they (Liberation) have still got the Australian distribution license for Lisztomania by some absurd combination of grandfather clauses, how does that give them, an Australian company with Australian rights, the right to demand the takedown of a lecture by an American, for Korean audiences hosted primarily in America? Copyright law is enough to drive one to insanity. Phoenix wouldn't even give a toss.
"The Harvard Law School professor's talk included short clips of amateur dance videos that used French band Phoenix's Lisztomania as the soundtrack. After delivering the lecture, Lessig uploaded the clips to YouTube, and the fun started."
To me this sounds like the clips were stripped from the lectures and stitched together for an independent musical performance on YouTube.
I don't know how you can frame a legally persuasive "fair use" case out of that. The take down order seems perfectly legitimate.
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> . . .
To me this sounds like the clips were stripped from the lectures and stitched together for an independent musical performance on YouTube.
I don't know how you can frame a legally persuasive "fair use" case out of that. The take down order seems perfectly legitimate.
<
To me this sounds like you didn't bother to look at the video.
I don't know how you can build an opinion like this.
Well since ole Walt got rich stealing out of the public domain, making it his only and then his company pushing for eternal copyright (seriously nothing is ever going into the public domain from the 1930's onward in the US anyway) its hard to respect any of the current copyright laws. All just an excuse for lawyers to get more billable hours like most IP law implementations just like this case and most others. Copyright has its place but not the way its implemented in the US for sure.
To be fair, it's more than 10s. More like a minute.
But nevertheless, it's for illustrative, educational purposes, not continuous and less than 2% of the lecture's runtime.
They should be glad that they're getting free promotion, he could have picked someone else.
Maybe someone better versed in DCMA can explain this to me...
The original use of the music was part of this "amateur dance troop's performance" presumably in it's entirety. Assuming they did not obtain permission and pay the requisite fee's THEY are the primary offender in this case correct?
By using a small clip of the performance and not the entire work the Lessing is within the definition of the fair use clause of DCMA as most of us understand it, he did not include the entire performance of the videos or the song , perhaps he didn't declare and attribute properly (or perhaps he did which is how they located and targeted it over the others) but he is not the primary offender here. (note it looks like he is using other copyrighted clips like the John Stewart show, and a bunch of cartoons but there's not lawsuit there....)
So why are they not dragging Lessing into court and not the ones doing the fan based videos of the song? More importantly how the heck did this ever get to court in the first place? This one should take 5 minutes to move to dismiss and hopefully the judge will toss it out and fine the plaintiffs for a nuisance lawsuit.
So why are they not dragging Lessing into court and not the ones doing the fan based videos of the song? More importantly how the heck did this ever get to court in the first place? This one should take 5 minutes to move to dismiss and hopefully the judge will toss it out and fine the plaintiffs for a nuisance lawsuit.
DCMA takedown notice ≠ legal action.
Lessig and the EFF are taking a case to court to argue that Lessig's use of the copyrighted material was "fair use" - that's all.
If the court agrees with them, they can reinstate the video clip in question on Youtube and tell Liberation Records to fuck off and do one.
It's far from being a nuisance lawsuit.
" ... and hopefully the judge will toss it out and fine the plaintiffs for a nuisance lawsuit."
You have missed the essence of this. It is EFF and Lessig who are the plaintiffs and Liberation Music the defendant. LM used the DMCA to get the lecture taken d own by Google/Youtube. Lessig objected to the take-down citeing fair-use, whereupon LM threatened a copyrigght suit unless he withdrew the objection.
If Lessig had not withdrawn, LM could have sued. After racking up considerable costs for Lessig, they could have decided not to proceed, withdrawn their suit, and left the defendant out of pocket.
Instead Lessig and the EFF have requested a fair-use declaration from a court, together with a claim for costs, etc. against LM subsequent to the disputed take-down. As LM are now the defendants rather than the plaintiffs, they are no longer in a position to drop a losing case and walk away without picking up the costs they have caused.
DMCA takedown notices require nothing at all - the claimant just file them and the hosting service are obliged to immediately take the file offline. DMCA takedowns are difficult to fight since there is a reverse burden of proof (you have to prove that you're not infringing on the claimants copyright). That's why you get trolls like this australian record company.
Trolling, or a determination to comment without reading.
>> A response of "fair use was made".
It seems that this had been accepted.
<<
LM rejected the fair-use claim, and responded with a threatened lawsuit against Lessig.
Here is a longer report about this affair:
http://ww.techdirt.com/articles/20130822/22593124287/larry-lessig-threatened-with-copyright-infringement-over-clear-fair-use-decides-to-fight-back.shtml
My mistake - I thought the "suit" was the DMCA request and thought it was LM's notice that had been removed, not Lessig's counter-notice.
I still fail to see the problem. They get to argue before a judge on whether or not it is fair use. They both get to present evidence and a determination will be made.
This is how the legal system works.
Although the fact Lessig retracted his counter-notice will probably go against him.
I think the post by vagabondo above sums it up very well. Go and read it.
Although Lawrance Lessig is a Harvard professor, he's probably not in a position to defend a copyright infringement claim without somebody backing him up financially (american law is very expensive, and although he is a Professor in Law, he's probably not qualified to defend himself in court without professional representation). If this had been a free lecture for Harvard, then the University might have done so, but this was for Creative Commons, and they are probably not cash rich enough to assist.
What gets me is the fact that Liberation Music believe they have any chance of winning. If anybody understands DMCA and copyright law in America, it has to be Professor Lessig. If I were LM, I would be running away very fast, and trying to settle as quick as possible, not that Professor Lessig will allow that now he has decided to get a precident set.
My guess is that LM will lose, and pull up the drawbridge to the US, and never pay the damages. I only hope that if this happens, the US court will attempt to extradite the board of LM to the US. If that happened, a little bit of my rapidly diminishing respect of the US court system would be restored
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Indeed it is, but it is not the EFF that is at fault.
Liberation Music is clearly trying to nullify the fair use clauses in US copyright legislation, and that is a clear violation of the rights permitted by that legislation.
People who think that all use of copyrighted media should be licensed and paid for do not understand the benefit to the copyright owners that such limited fair use, as long as it is not abused, can grant to a work.
Many tunes that would have sunk into obscurity have had life breathed into them by being included in a viral video. The fact that someone can hear something, like it, and immediatly buy it from iTunes, Amazon or such is of huge benefit. So what you want it your music included at low enough quality, incomplete, or with other noise over the top so that it cannot be ripped from the video, but recognisable enough to be identified.
Such was the use in this video. Liberation Music are harming the work and copyright owners, not helping them.
Or is he not getting pay-per-view for the YouTube video posting, or is the lecture not being used as a product or to promote some consulting business/side business the professor has?
Seems like it should be fair use if the preso was strictly academic or educational.
There needs to be an easier dispute resolution system and even a penalty for misuse.
A simple arbitration system where the person challenging the notice pays $100, and the issuer pays $100-1000 (depending on if they are an individual or a corporation) would fix a lot of this. With $50 of that going to arbitration fees an the rest being awarded based on the merits of the case.
Pretty much any simple dispute resolution system where both parties have at least some money at stake would keep both sides reasonable.
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