Lessig, Liberation Music, and the issue of “fair use”

The issue of “fair use” in relation to copyright in sound recordings came sharply into focus recently when Australian music label Liberation Music found itself as the defendant in a law suit filed in the US District Court in Massachusetts by a Harvard Law Professor, Lawrence Lessig.

Lessig is suing Liberation on the basis of provisions in US copyright legislation that seek to prevent copyright owners from making threats to alleged copyright infringers without proper basis.

Lessig’s suit is actually a further step in what has been an interesting example of the use of copyright protection measures used in relation to You Tube material. To make any sense of his suit it is necessary to review how the Boston professor and the Melbourne music company even came to cross paths.

Lessig had posted a 49-minute video of a lecture he had given on the subject of ‘content collaboration.’ As part of his lecture he showed five examples of clips that people had made of themselves dancing to the song Lisztomania by French band Phoenix, who are incidentally touring Australia this summer as part of the Future festival. While Phoenix are signed to the New York based Glassnote label they are licensed for release in ANZ by Liberation.

The uses of the song are relatively brief and the Professor Lessig talks over the vision and music as he explains the concept of people creating their own works using songs such as the Phoenix track.

There is little doubt that Lessig’s use of the music in his lecture was permissible under the doctrine of “fair use” which is looked at in greater detail below.

It is unlikely that Liberation’s lawyers would dispute that Lessig had a defence to the accusation of infringement had those theoretical lawyers turned their mind to it. The problem is that there are millions of clips on You Tube using music that is owned by someone else, often a record label.

Liberation, like just about every label or copyright owner, cannot afford to have a team of copyright lawyers scouring You Tube (and other sites) on a daily basis trying to detect infringing uses of their music. Understandably the music owners do not have the opportunity to consider each potential infringement on its merits before deciding whether to take action to prevent that use.

Instead they utilise a tool called Content ID that is provided by You Tube. Sound recording owners can submit their material to Content ID where it forms a library. Content ID in turn then automatically scans and/or searches for logged material across the millions of clips on You Tube and when it finds material that matches that in the library, it will generate what is known as a “takedown notice”.

A takedown notice advises that copyright material is being infringed, and provides the URL of the supposedly offending material. In response to such notices You Tube acts to prevent public access to the material.

The reason You Tube is so willing to assist with preventing copyright infringement lies in the Digital Millennium Copyright Act.  Effectively the DMCA allows You Tube, as an internet service provider, to be free of liability for the copyright decisions made by its users – provided that the ISP honors and copyright owner’s request to take down and offending video without dispute. A user has the right to require You Tube to put the video back up if the user can show the video is not infringing copyright, but when they do the user will usually receive a notice advising them that they could be sued by the copyright owner. That could be intimidating to most casual users of the service wanting to post clips of their dog doing something funny, set to a Lady GaGa tune.

But what if the material in the clip is actually being used in a way that is permissible under the doctrine of fair use? If this is the case, the alleged infringement is not an infringement at all. While use is being made of copyright material of another person, it is not an infringing use and thus being told that the material is being taken down for copyright infringement is simply incorrect.  The automated takedown notice is a scattergun approach – it detects any use of copyright material and demands that it be stopped, without considering whether the use may, in fact, be permissible.

There’s another factor to be considered. It would be wrong to portray You Tube as anti-fair use. Consider that You Tube is owned by Google. It’s arguable that Google is the world’s biggest liberator of copyright material relying on the willingness of copyright owners to allow their material to be accessed via the search engine’s discovery algorithms.

For Lessig, being told that his legitimate content had been removed as a result of an automated and incorrect takedown notice, based on a finding of an automated search bot, which never considered the possibility that the use he had made of the music was protected by the doctrine of fair use, personalised an issue that he already felt strongly about.

It was an area in which he has more than a passing interest.  In most of the Australian coverage of this dispute Lessig has been painted as a random law lecturer, posting a random You Tube clip, of a random lecture, which contained a random excerpt from a random song, which happened to be controlled by Liberation. There is nothing random about Lessig in this area.

Lawrence Lessig is one of the world’s leading voices on cultural collaboration in the internet age. He was one of the forefathers of the Creative Commons movement and in 2004 published a book named Free Culture that argued that in some circumstances “fair use” wasn’t sufficient liberation of copyright material and rather “free use” should be available (to crudely paraphrase a substantial work). In essence, Lessig identified that much of creative expression required gatekeeper approval and that this was an unacceptable impediment in the internet age. For him the idea of a computer bot riding roughshod over the idea of “fair use” would naturally be repugnant.

Liberation’s erroneous takedown notice was clearly aimed at the wrong guy.

As someone now thrust into the role of plaintiff in a suit aimed at penalising a copyright owner who simply ignored ‘fair use” when making a threatening takedown notice, Lessig is able to represent all those other creative collaborators who have also wrongly received those notices. Most of those people are too scared of the costs involved in fighting such notices, or they may simply not be aware that they have a perfectly valid defence. Lessig has no such problems and he’s clearly out to make a point. For Lessig and many who share his view of the post-internet age, “fair use” is not so much a defence to infringement, but a positive right in itself that they should seek to defend.

For Liberation Music, the problem is that the automated system that helps them detect a lot of infringing uses in a relatively cost effective way, also managed to catch a bigger fish who was not infringing and who was very capable of responding. The concern for Liberation is that Lessig wants to make an example of them. Lessig had already issued a counter takedown notice claiming fair use that You Tube accepted and the clip had been re-instated. He wasn’t content with this though, understandably believing that he had been put to the trouble of having to claim fair use when it would have been obvious to any legally educated person had they been in the place of the bot. His argument is that human intervention and evaluation is required prior to intimidating notices and legal threats being issued.

The Lessig suit isn’t time a copyright owner has been challenged. In 2007 a Pennsylvania mum, Stephanie Lenz posted a video of her baby dancing to a Prince song, Lets Go Crazy. You Tube got a takedown notice from Universal and they obeyed that notice. The video was blocked.

Lenz did what millions of other You Tube posters didn’t do. She questioned the right of Universal to issue such notices and she found her way into the embrace of the Electronic Frontier Foundation, a not-for-profit digital activism organization founded in 1990 by John Perry Barlow whose website states “EFF fights for freedom primarily in the courts, bringing and defending lawsuits even when that means taking on the US government or large corporations.”

In 2007, with the support of EFF, Lenz sued Universal for abusing the Digital Millenium Copyright Act, arguing that the takedown notice was issued in bad faith. In 2010 Lenz won an initial judgment on a number of her issues. The district court held that Universal must consider fair use when filing a take down notice, but noted that to prevail a plaintiff would need to show bad faith by a rights holder. Both parties have apparently cross-appealed to a higher court and as of August 2013 the appeals remain pending.

The video can be seen here: http://www.youtube.com/watch?v=N1KfJHFWlhQ

It seems likely that Lessig’s case is based in the suggestion that by their very use automated bots that issue takedown notices without considering any fair use defences are, by definition, issuing the notices in bad faith.

The bad news for Liberation is that Lessig’s case is also being funded and run by the Electronic Frontier Foundation. The EFF have had a long standing engagement with this issue and in fact had created a set of guidelines for industry that was called Fair Use Principles For User Generated Video Content. This case isn’t likely to be one that they will drop lightly, especially in view of the plaintiff they have to stand behind. There is likely to be a question of damage – that is – what damage can Lessig show he suffered as a result of Liberations bad faith threat is bad faith can be proven, but its likely that the upholding of the principle of fair use, more so than an award of damages is what is motivating the plaintiff and their legal representation.

It is likely this matter will not go away in a hurry.

Andrew Watt is an IP and Entertainment Lawyer at Gibsons Solicitors in Melbourne