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

[HarryT]

Originally Posted by Elfwreck

Since Lenz v Universal, it's been established that copyright holders are legally required to consider fair use before issuing a DMCA takedown notice. Issuing one without that does indeed make for a "bogus" takedown--one not based on application law, but on the premise that a host will take down the content regardless of the validity of the notice.

I don't know what evidence you have to suggest that the copyright holder did not consider the question of fair use, and reach the conclusion that it was not fair use. Whether or not use of the tune constitutes fair use is the whole question under debate, so clearly opinions on the matter differ.

[Elfwreck]

Originally Posted by HarryT

I don't know what evidence you have to suggest that the copyright holder did not consider the question of fair use, and reach the conclusion that it was not fair use. Whether or not use of the tune constitutes fair use is the whole question under debate, so clearly opinions on the matter differ.

Can't be certain, but Lessig's complaint mentions how the song was used:

25. The lecture included several clips of amateur music videos in order to illustrate cultural developments in the age of the Internet.
26. One set of clips was taken from videos created by amateurs around the world, each of which depicts groups of people dancing to the same song, “Lisztomania,” by the band Phoenix.
27. The “Lisztomania” copycat video phenomenon started when a YouTube user, called “avoidant consumer,” posted on YouTube a video combining scenes from several movies, with the song “Lisztomania” serving as the soundtrack to the video.
28. Inspired by avoidant consumer’s work, other YouTube users from around the world, located in places as disparate as Brooklyn and San Francisco as well as Latvia, Kenya, Brazil and Israel, created their own versions of the video, with real people “performing” the roles of the actors in the original movies, and again with “Lisztomania” as the soundtrack.
29. Professor Lessig included these clips in the “Open” lecture to illustrate how young people are using videos and other tools to create and communicate via the Internet.

That looks like a solid example of fair use, even more than Lenz v Universal. He's using the song in other media as an example of a cultural phenomenon, for educational purposes.

It'll be interesting to see the response to find out how Liberation Music tries to claim that's not fair use. It's possible that they considered it, and decided that no, this really is infringement; that would be a fascinating explanation.

[Ninjalawyer]

Originally Posted by HarryT

I don't know what evidence you have to suggest that the copyright holder did not consider the question of fair use, and reach the conclusion that it was not fair use. Whether or not use of the tune constitutes fair use is the whole question under debate, so clearly opinions on the matter differ.

I haven't read through this entire thread, but I am familiar with Lessig's argument and the filings he's made. With that said, he can be fairly sure it's a bogus takedown because what he did is clearly fair use under U.S. law; it's some brief clips used to illustrate a concept (including commentary from Lessig over the clips), it was for education and not a commercial purpose and there's no reasonable argument that it harmed the market for Lisztomania's song. If this isn't fair use, then the concept is essentially meaningless.

Really, this is s bog-standard case of a copyright holder using the U.S. DMCA takedown process inappropriately. It happens all the time because there's little consequence for copyright holders who jump the gun and start firing off takedown notices. The only thing that makes this case mildly interesting is that Lessig is suing for damages under the DMCA, something I'm not aware of anyone managing to do successfully in other cases of a bogus DMCA takedowns.

[FizzyWater]

Hey, it looks like the professor counter-sued ... and won the case!

http://chronicle.com/blogs/ticker/ha...rd-label/73677

[EowynCarter]

Maybe they will think twice and won't be as trigger happy next time.
For once, they bumped into someone who could fight back.

[Ninjalawyer]

Originally Posted by FizzyWater

Hey, it looks like the professor counter-sued ... and won the case!

http://chronicle.com/blogs/ticker/ha...rd-label/73677

In this case, "won" means settled. The counter notice system of the DMCA is totally lacking in teeth, and seems almost designed to make it arduous to successfully dispute a takedown notice. That said, this part is encouraging:

The record label agreed that Mr. Lessig’s use of the song was fair use, and said it would “amend its copyright and YouTube policy to ensure that mistakes like this will not happen again.”