[x-pubpol] Lessig triumphs in fair use battle

[Joly MacFie]

http://the1709blog.blogspot.com/2014/03/lessig-triumphs-in-fair-use-battle.html

Back in August 2013 Lawrence Lessig filed a federal complaint after
YouTube forced the Harvard University law professor and Creative Commons
co-founder to take down a video of a lecture that featured people
dancing to a copyrighted sound recording. Supported by the Electronic
Frontier Foundation (EFF), Lessig said: "The rise of extremist
enforcement tactics makes it increasingly difficult for creators to use
the freedoms copyright law gives them. I have the opportunity, with the
help of EFF, to challenge this particular attack. I am hopeful the
precedent this case will set will help others avoid such a need to
fight." The complaint stems from a 2010 lecture Lessig delivered in
South Korea on cultural and technological innovation. He presented clips
of user-generated videos showing people dancing to Phoenix's single
"Lisztomania" which was a popular meme at the time started by user
"Avoidant Consumer," who combined scenes of people dancing from several
movies with the song playing in the background. The video went live last
June but complaints from Viacom and Australian-based music publisher
Liberation Music via the Digital Millennium Copyright Act prompted
YouTube to remove Lessig's lecture twice. Lessig filed a complaint
disputing Viacom's action to block the  video on YouTube and had the
video restored on June 30th. That same day, Liberation Music filed a
complaint to YouTube, and the video-streaming platform informed Lessig
that it had again removed his lecture video. Lessig made another
complaint to YouTube, but on July 8th, Liberation Music threatened to
sue him if he did not retract his complaint, which he eventually did but
then issued the lawsuit which ran through the checklist of fair use,
making a case for why the lecture falls under that distinction: he used
a small proportion of the song, his lecture doesn't compete with the
market for the song in any way, and the lecture is an entirely new
creation. Phoenix wanted its song to entertain and make money; Lessig's
lecture was educational, and neither he nor Creative Commons, the
sponsor, made any profit.

Liberation Music has now reached a settlement
<http://www.capradio.org/news/npr/story?storyid=283554774> with Lessig.
The settlement includes an admission that Lessig had the right to use a
track by the band Phoenix, and Liberation admitted Lessig's use of the
song was protected by fair use - and has agreed to adopt new policies
around issuing takedown notices. The label has promised to work with
Lessig to improve its YouTube and copyright policies to make sure this
sort of fiasco doesn't happen again.

Phoenix, the band whose copyrighted music had been so horrendously
violated, but had not themselves taken any action, had this to say
<
http://pitchfork.com/news/54157-phoenix-release-statement-in-support-of-fair-use-encourage-copyright-law-change/
>
in
a statement:

/We support fair use of our music!/
/
/ /We were upset to find out that a lecture by Professor Lawrence Lessig
titled 'Open' was removed from YouTube without review, under the
mistaken belief that it infringed our copyright interests./
/This lecture about fair-use included--as examples--bits of spontaneous
fan videos using our song "Lisztomania"./
/
/ /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./
/
/ /One of the great beauties of the digital era is to liberate
spontaneous creativity--it might be a chaotic space of free association
sometimes but the contemporary experience of digital re-meditation is
enormously liberating. /
/
/ /We don't feel the least alienated by this; appropriation and
recontextualization is a long-standing behavior that has just been made
easier and more visible by the ubiquity of the internet./
/
/ /In a few words: //We absolutely support fair use of our music. And we
can only encourage a new copyright policy that protects fair use as much
as every creators' legitimate interests./
/
/ /Phoenix/
/

-- 
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