Lawrence Lessig is a noted Harvard Law professor but is perhaps better known for his work as a co-founder of Creative Commons, the non-profit org that’s devoted to expanding the range of creative works that can be shared and legally built upon by others. It’s fair to say that Lessig knows a little something about the Fair Use doctrine in American copyright law; he’s probably not the guy you want to tangle with on Fair Use issues.
In 2010, Lessig delivered the keynote address to a Creative Commons conference in Korea, discussing the present and future of cultural and technological innovation. As part of his lecture, he presented several amateur music videos, some of which depicted people dancing to the song, “Listzomania” by French rock band Phoenix, to illustrate a phenomenon begun by a YouTube user, called “avoidant consumer,” who posted a video combining scenes from several movies, with “Lisztomania” serving as the soundtrack to the video. Soon, others worldwide picked up on avoidant consumer’s creation and began to create their own versions of the video, with real people playing the roles of the actors in the original movies, and using “Lisztomania” as the soundtrack. Clearly, Lessig purpose in including these clips in his lecture was to illustrate how young people are using videos and other tools to create and communicate via the Internet.
The trouble began after Lessig uploaded his lecture to YouTube. YouTube received a DMCA takedown notice and Lessig received a threat of litigation from Liberation Music, Phoenix’s record label. Lessig responded in August 2013, by filing a complaint for declaratory relief, setting up the Fair Use defense. In order for a copyright owner to proceed with a takedown notice, the DMCA provides that he must have “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,” the copyright owner must determine whether the material makes fair use of the copyright. For Lessig to prevail on his claim that Liberation Music wrongfully sent the takedown notice, he would have to show that Liberation Music acted in bad faith by failing to consider the Fair Use exception to copyright infringement.
Now, Lessig has favorably settled the suit. The case wasn’t litigated, so there’s no judicial precedent from the settlement, but Lessig will receive undisclosed damages and Liberation Music will adopt new takedown policies with respect to Fair Use. As a result of the settlement, Liberation Music must now assure that no takedown notice is issued without human review, which includes an analysis of the applicability of Fair Use. “Too often, copyright is used as an excuse to silence legitimate speech,” said Lessig. “Hopefully this lawsuit and this settlement will send a message to copyright owners to adopt fair takedown practices—or face the consequences.”
We have to assume that Liberation Music settled the case because it believed it had legitimate legal exposure for sending a bad faith takedown notice. Let’s hope, with Professor Lessig, that this settlement resounds throughout the copyright holders’ universe. How long will others continue to blindly send takedown notices in hopes that the “infringer” caves in and withdraws the content? Or will others simply make a better effort to “know thy defendant” before sending a DMCA notice?