Bogus takedown notice sent to the wrong person; Harvard Prof. Lessig fights back

Alexander Turcic · 08-23-2013, 05:51 AM

Yes, rightsholders are entitled to protect their content from being pirated, but it's a sad fact that many of them are quite trigger-happy when it comes to wiping their content off the face of the Internet. This time it happened to Larry Lessig, Roy L. Furman Professor of Law and Leadership at Harvard Law School and co-founder of Creative Commons, who has allegedly violated copyright because he used a song by the French band Phoenix in one of his lectures that was subsequently posted on YouTube. Rather than removing the lecture clip, Prof. Lessig is now fighting back by suing Liberation Music. He enlisted EFF to help him take the record company to court:

Quote:

Earlier this year, Liberation Music, which claims to own the license to the Phoenix song, began the process to block the video through YouTube's copyright infringement system. After the company submitted a DMCA takedown notice, Lessig filed a counter-notice that asserted the clips were fair use. After Liberation Music threatened to sue Lessig, he retracted the notice. But Lessig did not concede this issue. Instead, he enlisted EFF's help to take Liberation Music to court.

"There's a long and sorry history of content owners abusing copyright to take down fair uses, but this one is particularly shocking," said EFF Intellectual Property Director Corynne McSherry. "Based on nothing more than a few clips illustrating Internet creativity, Liberation Music took down an entire lecture by one of the leading experts in the world on copyright and fair use. This kind of abuse has to stop."

Below are two YouTube clips where Lessig talks about copyright.

Q&A with Lawrence Lessig on copyright in the digital age

Larry Lessig: Laws that choke creativity

Related: US Gov seeks to strike a copyright balance, wants your input, Rapidshare loses court battle against German booksellers

[via Boing Boing]

Image: Kristina Alexanderson/Flickr

Billi · 08-23-2013, 06:10 AM

For me personally this is not so much a case of copyright infringement or not but simply of bad behaviour and impoliteness.

It really doesn't take so much efforts to write a letter/email to this french band beforehand and inform them that he used the song in a lecture and wants to put the lecture on Youtube and thus is asking for permission. There will be very very few copyright owners who would refuse such a request.

beachwanderer · 08-23-2013, 06:26 AM

@Billi That's not the point in this case. The question really is, how far does the concept of fair use according to US-law expand. That's a legitimate question. If fair use allows this, as Prof. Lessig argues, then there really is no need to ask beforehand.

Your personal feelings towards this are as they are because you are looking at it from the background of another legal system ... No "Fair Use" in Germany, but "Schrankenbestimmungen" des UrhG.

shalym · 08-23-2013, 06:29 AM

Quote:

Originally Posted by Billi

For me personally this is not so much a case of copyright infringement or not but simply of bad behaviour and impoliteness.

It really doesn't take so much efforts to write a letter/email to this french band beforehand and inform them that he used the song in a lecture and wants to put the lecture on Youtube and thus is asking for permission. There will be very very few copyright owners who would refuse such a request.

The point is, that according to the law, using a clip of a song in an educational lecture is considered fair use, and he doesn't HAVE to ask permission. Should a professor have to ask permission every time they speak a quote from a book to a class, or what about a music history teacher? If they play a piece of a song to their class for demonstration purposes, should they have to ask permission?

Shari

Billi · 08-23-2013, 06:43 AM

Shalym, as far as I've understood it, the problem is not the use of the song in the lecture but the upload of the lecture with this song to Youtube.

beachwanderer, yes, my personal feelings based on my knowledge of European copyright and not of the US copyright. Which legal system is here relevant as Phoenix is a French band?

What I wanted to express with my "personal" (=not necessarily legally correct) opinion is that with a little bit of courtesy the professor could have a win-win-situation, now he has a lose-lose situation that helps no one.

beachwanderer · 08-23-2013, 06:48 AM

Quote:

Originally Posted by shalym

The point is, that according to the law, using a clip of a song in an educational lecture is considered fair use, and he doesn't HAVE to ask permission. Should a professor have to ask permission every time they speak a quote from a book to a class, or what about a music history teacher? If they play a piece of a song to their class for demonstration purposes, should they have to ask permission?

Shari

As you say. But here we go and dive into the matter of national legislation: Under German law educational use can be allowed without prior consent of the person holding the copyright , but only, if the use is limited to a defined group of people (e.g. class at school) who are adressed. So, in this case ...

beachwanderer · 08-23-2013, 06:59 AM

Quote:

Originally Posted by Billi

Shalym, as far as I've understood it, the problem is not the use of the song in the lecture but the upload of the lecture with this song to Youtube.

Quote:

Originally Posted by Billi

What I wanted to express with my "personal" (=not necessarily legally correct) opinion is that with a little bit of courtesy the professor could have a win-win-situation, now he has a lose-lose situation that helps no one.

Which very much speaks in your favour and reflects your attitude of conflict limitation for which you are well liked.

(Turns and orders an new pot of honey.)

But here there we have a legal (and, in the end, constitutional) problem, a professor of law and a firm wanting to gain profit. That's how law is made.

pdurrant · 08-23-2013, 07:12 AM

Quote:

Originally Posted by Billi

[...] with a little bit of courtesy the professor could have a win-win-situation, now he has a lose-lose situation that helps no one.

No.

Now he has an opportunity to clarify the law in the US in this area, which will be of great benefit to everyone.

I was somewhat surprised that he withdrew his counter notice, but (as he's the law professor, not me) I assume there's some good legal reason that it was better to do that and then go to court himself.

frahse · 08-23-2013, 07:21 AM

The old question.

Does my hand have the right to occupy the space that your face is in?

Legal trifles: Does it matter whether it is the left hand or the right hand? Or which side of the face.

mrscoach · 08-23-2013, 07:30 AM

I'm assuming that the lecture in question was on law? If so, then I find it interesting that Liberation Music sent the notice in the first place, since law lectures are given by people that are experts on law.

I also find it ironic that a company with "liberation" in their name is against liberation. I think this situation might warrant popcorn and a comfy chair to watch.

momghoti · 08-23-2013, 08:52 AM

I wouldn't be surprised if the band has nothing to do with this, and may not even be aware of it. Depending on the contract, I understand that it's common once a work is produced/published for the rights to be the property of the company and the artist's wishes are not considered.
Maybe it would be polite to ask permission before using a small clip/sample of a work, but it probably could also be an irritating burden for the artist/company to deal with. Clarifying the issue would help everybody.
Rene

crich70 · 08-23-2013, 08:55 AM

Quote:

Originally Posted by Billi

For me personally this is not so much a case of copyright infringement or not but simply of bad behaviour and impoliteness.

It really doesn't take so much efforts to write a letter/email to this french band beforehand and inform them that he used the song in a lecture and wants to put the lecture on Youtube and thus is asking for permission. There will be very very few copyright owners who would refuse such a request.

There are accepted 'fair use' guidelines for using a part of a song or when quoting from a book by another person. As long as the person using the material stays within that % of the whole then it's generally accepted that no such letter/email is needed. For example I could have a character in a book sing part of the 1st line of "Battle Hymn of the Republic" without having to worry (assuming it is/was still in copyright) about having to get permission first. If I was putting together a book of Hymn's on the other hand I'd have to make sure that each separate hymn was either out of copyright or that I had permission to use them because I would be printing up copies of the entire hymn. To me it smacks of more impoliteness to issue a take down order of something when it is within the standards of free use. If someone writes a 100 line poem and someone else quotes 5 lines of that poem in a youtube video it isn't copyright infringement. It's fair use since 5 lines would be only 5% (I'm not sure what the limit is on amount, though shorter seems to be better). 2k words out of a 10k article wouldn't be fair use (20%), but 2k words out of a 500,000 word work would probably be ok as it would be such a small amount (.4%)

The factors use to determine such are as follows:

Quote:

The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
Well the Prof. use was as part of a lecture.
The nature of the copyrighted work
It was a song in this case
The amount and substantiality of the portion used in relation to the copyrighted work as a whole
I haven't seen the video and don't know how long the song is but if it's a long song and he just used 1 or 2 lines he should be in the clear.
The effect of the use upon the potential market for, or value of, the copyrighted work
If he just quoted a small bit it might actually lead someone to want to seek out a copy of the complete song I would think.

Fluribus · 08-23-2013, 05:31 PM

Quote:

Originally Posted by Billi

Shalym, as far as I've understood it, the problem is not the use of the song in the lecture but the upload of the lecture with this song to Youtube.

One way that this cripple whiles away the time is watching lectures on the internet. I hope that Prof. Lessig's actions will result in more lectures being available.

cromag · 08-23-2013, 05:41 PM

Quote:

Originally Posted by Billi

For me personally this is not so much a case of copyright infringement or not but simply of bad behaviour and impoliteness.

It really doesn't take so much efforts to write a letter/email to this french band beforehand and inform them that he used the song in a lecture and wants to put the lecture on Youtube and thus is asking for permission. There will be very very few copyright owners who would refuse such a request.

I may be wrong -- and I frequently am -- but I don't know that permission from the band would make that much difference if the license really is owned by a third party, like Liberation Music.

vxf · 08-23-2013, 09:08 PM

But... but... am I the only one that finds inclusion of the song in the lecture inappropriate, from a copyright point of view?

I teach as well. And I try to include things to make my lectures more interesting and engaging. Which is what this professor does as well. Why did he have the song in there in the first place? To entertain, not to educate. And to entertain by using someone else's work is... well, exactly the kind of thing we want to prevent.

This strikes me as showmanship, not as an honest debate on fair use.

08-23-2013, 06:26 AM	#3
beachwanderer - Posts: 2,602 Karma: 16748808 Join Date: Nov 2007 Location: At the Baltic Sea Device: Some	@Billi That's not the point in this case. The question really is, how far does the concept of fair use according to US-law expand. That's a legitimate question. If fair use allows this, as Prof. Lessig argues, then there really is no need to ask beforehand. Your personal feelings towards this are as they are because you are looking at it from the background of another legal system ... No "Fair Use" in Germany, but "Schrankenbestimmungen" des UrhG. Last edited by beachwanderer; 08-23-2013 at 06:31 AM.

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08-23-2013, 06:10 AM	#2
Billi Wizard Posts: 3,388 Karma: 14190103 Join Date: Jun 2009 Location: Berlin Device: Cybook, iRex, PB, Onyx	For me personally this is not so much a case of copyright infringement or not but simply of bad behaviour and impoliteness. It really doesn't take so much efforts to write a letter/email to this french band beforehand and inform them that he used the song in a lecture and wants to put the lecture on Youtube and thus is asking for permission. There will be very very few copyright owners who would refuse such a request.

08-23-2013, 06:43 AM	#5
Billi Wizard Posts: 3,388 Karma: 14190103 Join Date: Jun 2009 Location: Berlin Device: Cybook, iRex, PB, Onyx	Shalym, as far as I've understood it, the problem is not the use of the song in the lecture but the upload of the lecture with this song to Youtube. beachwanderer, yes, my personal feelings based on my knowledge of European copyright and not of the US copyright. Which legal system is here relevant as Phoenix is a French band? What I wanted to express with my "personal" (=not necessarily legally correct) opinion is that with a little bit of courtesy the professor could have a win-win-situation, now he has a lose-lose situation that helps no one.

08-23-2013, 07:21 AM	#9
frahse occasional author Posts: 2,315 Karma: 2064403292 Join Date: Sep 2011 Location: Wandering God's glorious hills, valleys and plains. Device: A Franklin BI (before Internet) was the first. I still have it.	The old question. Does my hand have the right to occupy the space that your face is in? Legal trifles: Does it matter whether it is the left hand or the right hand? Or which side of the face.

08-23-2013, 07:30 AM	#10
mrscoach Guru Posts: 767 Karma: 4837659 Join Date: Aug 2009 Location: San Angelo Texas Device: Samsung Galaxy tab	I'm assuming that the lecture in question was on law? If so, then I find it interesting that Liberation Music sent the notice in the first place, since law lectures are given by people that are experts on law. I also find it ironic that a company with "liberation" in their name is against liberation. I think this situation might warrant popcorn and a comfy chair to watch.

08-23-2013, 08:52 AM	#11
momghoti Zealot Posts: 121 Karma: 1000021 Join Date: Feb 2008 Location: Hook, UK Device: Cybook Bookeen	I wouldn't be surprised if the band has nothing to do with this, and may not even be aware of it. Depending on the contract, I understand that it's common once a work is produced/published for the rights to be the property of the company and the artist's wishes are not considered. Maybe it would be polite to ask permission before using a small clip/sample of a work, but it probably could also be an irritating burden for the artist/company to deal with. Clarifying the issue would help everybody. Rene

08-23-2013, 09:08 PM	#15
vxf Guru Posts: 944 Karma: 1490348 Join Date: Jun 2010 Location: Norman, OK Device: Sony PRS 350, 900, 950; Kindles (ALL of them!); Kobo Aura One	But... but... am I the only one that finds inclusion of the song in the lecture inappropriate, from a copyright point of view? I teach as well. And I try to include things to make my lectures more interesting and engaging. Which is what this professor does as well. Why did he have the song in there in the first place? To entertain, not to educate. And to entertain by using someone else's work is... well, exactly the kind of thing we want to prevent. This strikes me as showmanship, not as an honest debate on fair use.

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