One of the lurking issues in the murky waters of copyright fair use is the takedown notice provision of the Digital Millennium Copyright Act of 1998 (the “DMCA”).  The DMCA, codified at 17 U.S.C. § 512, implements two 1996 World Intellectual Property Organization treaties and absolves internet service providers (“ISPs”) who disable allegedly infringing content when notified by the copyright holder.  In practice, this is known as a “takedown notice,” and serves to protect ISPs like YouTube from secondary infringement if a user posts something with infringing content (the easiest example being an unedited clip of a copyrighted movie).  Copyright holders patrol the internet to various degrees, but § 512 gives the holders a tool to encourage compliance, and ISPs a way not to be sued out of existence.

A harder case comes when a user posts content that contains copyrighted work for some other purpose, whether expressive or critical, opening a fair use analysis.  As the Ninth Circuit explicated just recently, fair use is a sensitive analysis, and can often be hard to predict.  Thus, in practical terms, ISPs have little incentive to give the allegedly infringing poster the benefit of the doubt; if the ISP takes down the content at the request of the copyright holder it faces little downside, but if it gets the question wrong believing in fair use, then the ISP is in the crosshairs of infringement liability.

Not surprisingly, the takedown notice is popular among major studios and ISPs, far less so among video artists and essayists.  A new lawsuit filed here in Boston by Harvard Law School Professor Lawrence Lessig seeks to impose some order to this dynamic.  Lessig has been at the forefront of challenging other parts of the Copyright Act arguing (albeit unsuccessfully) in Eldred v. Ashcroft that the extension of the Copyright Act’s term in the 1998 Sonny Bono Copyright Extension Act was effectively indefinite and therefore beyond Congress’s constitutional power).  Lessig’s new case is against Liberation Party Music Ltd., the copyright holder to the song “Lisztomania” by the French band Phoenix.  As Lessig alleges, he gave a series of “open lectures,” including one in South Korea in 2010.  As part of those lectures, later posted on YouTube.  Lessig showed several clips of amateur Internet content, including a montage of third-party content by various posters showing themselves dancing to the song.  Lessig showed this montage, he says, “to illustrate how young people are using videos and other tools to create and communicate via the Internet.”

On June 30, 2013, Lessig alleges, YouTube informed him that Viacom had requested the “Open” lecture be taken down, which YouTube proceeded to do.  After correspondence with Lessig and his fair use argument, YouTube restored the video taken down at Viacom’s request.  It later removed the video again in response to a takedown request by Liberation Music, which also threatened to sue Lessig.

Lessig has now preemptively sued Liberation for a declaration that his video is fair use.  The lawsuit is less than a week old, so it will be some time before it adds anything to the fair use debate, but the case will be watched by video critics and users everywhere.  Given Lessig’s track record, one can expect the final word not to come for some time until the appellate courts have had their say.