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

[Elfwreck]

Originally Posted by vxf

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.

Do you know the song was there to entertain? I got the impression that it was used as an example to prove a point--that it was part of the educational value of the lecture, not used as background music to keep people interested.

[Fluribus]

Originally Posted by Elfwreck

Do you know the song was there to entertain? I got the impression that it was used as an example to prove a point--that it was part of the educational value of the lecture, not used as background music to keep people interested.

In most cases, I haven't found the music to be entertaining at all.

Most lectures that use examples like this cut them out before releasing them online. I find them less useful because of it.

[Billi]

Originally Posted by cromag

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.

No, you may be right, but that is not my point. My point was that the inclusion of the song is very much in the interest of the band too and a request for permission would very probably have been answered positively, be it by the band itself or by one of their representatives/right holders.

[arjaybe]

Lessig is a smart man and, as far as I know, a smart lawyer. The EFF uses cases like this to further its goals. I'll bet they've been waiting for something like this to establish this legal point. A test case. It's unlikely that they'd choose a weak case. It can't hurt to clarify the DMCA and fair use, and if it discourages the illegal use of copyright claims, then I'm behind Lessig and the EFF all the way.

rjb

[BuddyBoy]

Originally Posted by Billi

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?

Someone correct me if I'm wrong, but I believe the copyright law of the US is the effective jurisdiction, since that is the jurisdiction within which the alleged infringement took place.

And also they filed a DMCA takedown notice, under the US Digital Millennium Copyright Act.

[Elfwreck]

Originally Posted by arjaybe

Lessig is a smart man and, as far as I know, a smart lawyer.

Lessig was lead counsel in Eldred v Ashcroft, challenging the Sonny Bono Copyright Extension Act. He's written multiple books about copyright reform (Free Culture and Remix are both freely available online)and one about campaign finance reform, and is both willing and competent to take a case all the way to the Supreme Court. He doesn't need the EFF for this--except that he's a good enough lawyer to know that it's always, always a bad idea to represent yourself.

However, he'll be just as involved in the legal analysis and decision-making as whatever legal team the EFF assigns to the case. He's been through exactly this situation before, and that one involved a much bigger company. With Lenz v Universal as precedent, he may be looking for a solid courtroom ruling that can be pushed back to YouTube to require that they assist targets of wrongful DMCA notices in filing suit against the copyright holders who don't bother to look for fair use.

Liberation Music is likely to find themselves in the position of someone who set out rat-traps and caught an elephant by the tail.

[spellbanisher]

Originally Posted by Elfwreck

Lessig was lead counsel in Eldred v Ashcroft, challenging the Sonny Bono Copyright Extension Act. He's written multiple books about copyright reform (Free Culture and Remix are both freely available online)and one about campaign finance reform, and is both willing and competent to take a case all the way to the Supreme Court. He doesn't need the EFF for this--except that he's a good enough lawyer to know that it's always, always a bad idea to represent yourself.

However, Lessig lost Eldred v Ashcroft and admitted that he bungled the case.

[Mivo]

Completely irrelevant to the legal aspects: Owners of music copyrights should celebrate every time someone uses their songs in Youtube videos, because it is wonderful (and free) advertisement that is far more effective than the paid-for kinds of advertisement. The audio quality in YT videos is often pretty low, and I've bought numerous albums solely because someone used a song as background music in a video.

More relevant: I would be less critical about copyright regulations if the aspect of actual damage played a role. For example, did the band/copyright owner lose money because the professor used the song in his lecture or in the video? No? Then who cares. Yes? Then it should be stopped.

It is fortunate that copyright didn't exist in the antique and in the middle ages. We'd not be where we are.

[spellbanisher]

Originally Posted by Mivo

Completely irrelevant to the legal aspects: Owners of music copyrights should celebrate every time someone uses their songs in Youtube videos, because it is wonderful (and free) advertisement that is far more effective than the paid-for kinds of advertisement. The audio quality in YT videos is often pretty low, and I've bought numerous albums solely because someone used a song as background music in a video.

More relevant: I would be less critical about copyright regulations if the aspect of actual damage played a role. For example, did the band/copyright owner lose money because the professor used the song in his lecture or in the video? No? Then who cares. Yes? Then it should be stopped.

It is fortunate that copyright didn't exist in the antique and in the middle ages. We'd not be where we are.

It isn't necessarily about money (although it usually is). Copyright is also about controlling what can and can't be done with one's creation. Some musicians, for instance, object to politicians using their music in their campaigns because the creators don't want their music to be used to promote politics or causes that they themselves don't support.

[arjaybe]

Originally Posted by spellbanisher

It isn't necessarily about money (although it usually is). Copyright is also about controlling what can and can't be done with one's creation. Some musicians, for instance, object to politicians using their music in their campaigns because the creators don't want their music to be used to promote politics or causes that they themselves don't support.

Yes, it's pretty bad when the people who make the laws don't even know what they mean. I guess that's why they rely on the copyright industry to tell them.-)

[Apache]

Congress is notorious for using industries to write the laws regulating said industries. And they are so surprised at the number of loop holes found in those laws.
Apache

[Ninjalawyer]

Originally Posted by vxf

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.

[Apache]

Originally Posted by Ninjalawyer

Apache

[HarryT]

It seems a little inappropriate to describe this as a "bogus takedown notice". Professor Lessig is disputing its validity, but that does not make it "bogus".

[Elfwreck]

Originally Posted by HarryT

It seems a little inappropriate to describe this as a "bogus takedown notice". Professor Lessig is disputing its validity, but that does not make it "bogus".

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.

If the notice is invalid, "bogus" is a reasonable term for it. It's possibly premature to call it that, since that hasn't yet been established in court, but it fits with the article's assessment of the situation.

Hypothetically, if the notice is found to be entirely legit, Liberation Music could sue for libel, for the smear on their reputation. Somehow I don't see that as a likely outcome here, especially since "bogus" doesn't only mean "invalid" but sometimes is used to mean "annoying, unpleasant, the opposite of 'excellent'."