Fair use and DMCA takedowns
Lawrence Lessig has written many fine books and articles, played a key role in founding the Creative Commons and worked tirelessly to promote the interests of the public in copyright law. And now he has also given us a DMCA takedown case that perfectly illustrates the tension between fair use and the takedown procedure.
Lessig v. Liberation Music Pty Ltd 1:13-cv-12028 (D. Mass. Aug 22, 2013)
On June 4, 2010, Lessig delivered the keynote address at a Creative Commons conference in Seoul, South Korea. In the course of his 49-minute lecture Lessig discussed the present and future of cultural and technological innovation.
The lecture included several clips of amateur music videos in order to illustrate cultural developments in the age of the Internet.
One set of clips depicts groups of people dancing to the same song, “Lisztomania,” by the band Phoenix. The “Lisztomania” craze began 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. Inspired by avoidant consumer’s work, other YouTube users from around the world 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. Lessig’s evident 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.
Lessig taken down
Liberation Music sent a takedown notice to Youtube and then threatened to sue Lessig when he made a counter-notifaction. Rather than risk statutory damages and banishment from Youtube, Lessig withdrew his counter-notice and filed this complaint instead.
Fair Use and the DMCA notice and takedown process
Is this fair use?
Yes. If the facts as set out in the complaint are true, and I have no reason to doubt them, this is quite obviously fair use.
Lessig’s use His use was self-evidently highly “transformative” as that term is used in the fair use case law.
The original work exists to
entertain music fans, Lessig’s use of small slices of the work was intended to inform and illustrate a broader cultural phenomenon.
Lessig’s use would not have effected the market for or value of the Lisztomania composition or sound recording (a) because of it was transformative (see above) and (b) because the
five clips used in the lecture were fairly short compared to the original track — they ranged from
10 seconds to 47 seconds.
Is it wrong to file a takedown notice in the face of a compelling fair use defense?
The DMCA provisions that set up the notice and takedown regime (§ 512 of the Copyright Act) do not make any explicit reference to the fair use doctrine. However, for a copyright owner to proceed with “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. (See Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150 (N.D. Cal. 2008))
I have no doubt that Lessig will his declaratory judgment action. But prevailing on the misrepresentation claim under § 512(f) might be harder. He will have to show that the copyright owner acted in bad faith by issuing a takedown notice without “proper consideration” of the fair use doctrine. Case law suggests that this is a subjective, rather than objective standard.
Assuming that there is no admission by the defendant, the court will have to determine whether this particular claim to fair use was so obviously valid that it merited further consideration before filing the DMCA notice. The assertion by Liberation Music seems so reckless to me that this requirement may well have been met.