No adjournment in Authors Guild v. Google. Oral argument is set for Sept. 23, 2013

In an order dated yesterday, the court denied a request for adjournment of the oral argument, saying:

The date of September 23, 2013 was set on July 8, 2013, more than five weeks ago. The Court will not adjourn oral argument because new counsel in this eight-year old litigation is unavailable on September 23rd because he will be attending a conference on copyright law.

I don’t know who the new counsel for the Authors Guild is or what conference she or he was going to be attending.

Lessig v. Liberation Music is almost too good to be true

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)

Complaint in Lessig_v_Liberation_Music

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.


Code of Best Practices in Fair Use for Academic and Research Libraries

Code of Best Practices in Fair Use for Academic and Research Libraries

The Association of Research Libraries (ARL) has just released the Code of Best Practices in Fair Use for Academic and Research Libraries. The Code of Best Practices is intended to work as a clear and easy-to-use statement of fair and reasonable approaches to fair use developed by and for librarians who support academic inquiry and higher education.

What are these Best Practices codes about?

Best Practice statements such as this have been developed over the past decade in relation to classroom teaching, documentary filmmaking, online video, open courseware, media and communications studies, librarianship, poetry, and more. In general, Best Practices statements seek to identify points of strong and general agreement within user  communities  about what circumstances exist in which the unauthorized use of copyrighted material is crucial to the fulfillment of that community’s shared artistic or informational mission.

What does a Code of Best Practice Achieve? 

Best Practices are not a form of legal guarantee, but they are an important way for various  communities to educate themselves, bring together disparate sources of information, and state a common position. They also enable these communities to educate important third party stakeholders.

For example, following the development of the Documentary Filmmakers Statement of Best Practices in Fair Use in November 2005, every U.S. insurer that provides coverage against “errors and omissions” was willing to offer coverage for films that followed the Best Practices, which in turn, meant that films that had not been able to obtain copyright clearance but relied on fair use were able to be picked up for theatrical showing, DVD distribution, and television broadcasting – something that was not possible before the Best Practices.  There is ample evidence that filmmakers rely both extensively and successfully on own Statement of Best Practices, and the same is true of other creative communities that have created such documents for their own collective use.

What does the Code of Best Practices in Fair Use for Academic and Research Libraries do?

I have not read it yet, but taking its authors at their word, the Code deals with such common questions in higher education as:

  • When and how much copyrighted material can be digitized for student use? And should video be treated the same way as print?
  • How can libraries’ special collections be made available online?
  • Can libraries archive websites for the use of future students and scholars?

The Code identifies the relevance of fair use in eight recurrent situations for librarians:

Supporting teaching and learning with access to library materials via digital technologies
Using selections from collection materials to publicize a library’s activities, or to create physical and virtual exhibitions

  • Digitizing to preserve at-risk items
  • Creating digital collections of archival and special collections materials
  • Reproducing material for use by disabled students, faculty, staff, and other appropriate users
  • Maintaining the integrity of works deposited in institutional repositories
  • Creating databases to facilitate non-consumptive research uses (including search)
  • Collecting material posted on the web and making it available
  • In the Code, librarians affirm that fair use is available in each of these contexts, providing helpful guidance about the scope of best practice in each.

The development of the Code of Best Practices in Fair Use for Academic and Research Libraries is supported by a grant from The Andrew W. Mellon Foundation. The Code was developed in partnership with the Center for Social Media and the Washington College of Law at American University.

Post Script: 

The wonderful Peter Jaszi has been the driving force behind many of these Best practices projects. You can read all about it in Patricia Aufderheide and Peter Jaszi, Reclaiming Fair Use (University of Chicago Press, 2011).

My #IPSC slides – Copyright & Compulsory Licenses

IPSC 2013 (Matthew Sag)

Recent proposals to address library digitization through variations of compulsory licensing raise some important questions about the justification for compulsory licenses, the institutional design considerations that should go into any compulsory license regime and the relationship between fair use and compulsory licensing. For the most part, compulsory licenses are no substitute for fair use. Although fair use can be explained in terms of ‘market failure’ in the most abstract sense, in practice most fair uses are not simply the result of high cost of transacting, or if they are, these are not the kinds of transaction costs that can be resolved by a one-size-fits-all compulsory license. Compulsory licenses can be socially beneficial in theory, but they can be extremely problematic to administer in practice. A good compulsory license system may be an effective complement to fair use, but the case for crowding out fair use with compulsory licenses is weak.

In this presentation I explain six important institutional design considerations that must be addressed before anyone can seriously advocate establishing a copyright collective by legislative fiat.

Institutional Design Issues

  • Rate-Setting {who decides? what decision standard? how does the decision-maker get reliable information?}
  • Monopoly Pricing
  • Principal-Agent Problems
  • Mission Creep
  • Stifling Innovation
  • Overshadowing other policy imperatives