Professor Lawrence Lessig is a well-known Professor at Harvard Law School and a copyright reform activist. He is a founding board member of Creative Commons and the author of many publications (including “Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity”).
Perhaps he is not the best person to pick a copyright fight with – but Liberation Music did just that. Liberation Music is an Australian music label and the music label for Phoenix, a French indie-pop group. In 2009, Phoenix’s song “Lisztomania” became incredibly popular. Following a video that used the song as background music, a “copycat” video phenomenon began, as fans around the world made their own similar videos with the song as background music and uploaded them onto YouTube.
In 2010, Lessig delivered a lecture at a conference of Creative Commons and posted that lecture on YouTube. During the course of that lecture, Lessig played several clips of amateur videos to illustrate cultural developments in the internet age. One set of clips included some of the Lisztomania copycat videos.
Liberation Music filed a DMCA take-down notice with YouTube, claiming that the video infringed copyright, and the video was automatically taken down by YouTube. Lessig fired back with a counter notice, asserting that his use of the song was fair use. When Liberation Music threatened to sue him unless he took the video down, Lessig took the video down but then filed a claim in the district court seeking declaratory relief, an injunction and damages for misrepresentation, claiming that Liberation Music had improperly asserted copyright infringement (you can see the complaint here).
YouTube take-down procedures and fair use
We have previously set out an explanation of YouTube’s take down procedures here. In summary, YouTube’s policies are implementing s 512 of the US Digital Millennium Copyright Act (DMCA). Under this legislation, an online service provider won’t be liable for the infringement of its users if it meets certain conditions. These conditions include a notice procedure, under which if a notice is sent by the copyright owner, the provider will remove infringing material, but the user may file a counter-notice.
These “notice and take down” provisions and YouTube’s copyright policy has often been criticised for its ability to be abused by copyright owners (see our post here), who may send copyright infringement notices even if a particular video is a “fair use” of the material.
Under US law, “fair use” of copyright material is not infringement. Whether a use is “fair use” takes into account factors such as the purpose and character of the use, market harm and the amount of the original work used. Importantly in this case, Lessig’s use was educational.
Australian law, does not have a “fair use” exception, but a series of fair dealing exceptions (for now – watchthis space). Under Australian law, a fair dealing with a sound recording for the purpose of research or study does not infringe copyright. It is currently unclear on the face of this fair dealing exception whether it extends to presentations given at conferences.
What happened in this case?
Lessig and Liberation Music recently settled their dispute. Under the settlement agreement (part of which has been made public here), Liberation Music agreed to pay Lessig for the harm that it caused.
Interestingly, Liberation Music agreed that Lessig’s use was both fair use under US law and fair dealing under Australian law and said that it regretted that it had made a mistake in sending the take-down notice. The band, Phoenix, also issued a statement, stating that they support fair use of their music and also supported the copycat videos: “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.”
Why then did Liberation Music send YouTube a take-down notice? Helpfully for interested person, as a condition of the settlement, Liberation Music was required to submit a declaration explaining its take-down policies. It used YouTube’s automatic Content ID system (which matches videos with sound recordings), and a single employee had initiated the take-down process. The employee (who did not have a legal background) failed to review Lessig’s video before threatening Lessig with a lawsuit and did not consider whether it was fair use.
Liberation Music has stated that it will amend its copyright policy and ensure that it protects both valid copyright interests and respect fair use and fair dealing. Again interestingly, part of the settlement agreement appears to have been that the parties worked together to improve Liberation Music’s methodology for compliance with the requirements of the DMCA.
This is perhaps somewhat of an unusual settlement, in that much of the settlement has been made public. But we suspect that this was part of Lessig’s plan. After all, he has publicly stated that he wanted to “send a message to copyright owners to adopt fair takedown practices—or face the consequences”.