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Fri September 27, 2013
All Tech Considered

Record Label Picks Copyright Fight — With The Wrong Guy

Originally published on Fri September 27, 2013 4:32 pm

An Australian record label may have picked a fight with the wrong guy. The label sent a standard takedown notice threatening to sue after YouTube computers spotted its music in a video.

It turns out that video was posted by one of the most famous copyright attorneys in the world, and Lawrence Lessig is suing back.

Lessig, a Harvard Law School professor, has lectured around the world about how copyright law needs to adapt to the Internet age. In his lecture, he shows examples of people who have used the Internet to "share their culture and remix other people's creations."

One of the examples he likes to show is a series of remixes that use the song "Lisztomania" by the French band Phoenix. Someone remixed that song with clips from the iconic '80s movie The Breakfast Club. The remix went viral and inspired other videos in which people pretended to be Breakfast Club actors dancing to the song.

Copyright Vs. Fair Use

Lessig posted his lecture on YouTube, which uses a technology that scans videos to find copyrighted songs.

Many labels and artists have agreed to let songs stay up in return for a cut of the money that YouTube gets from ads it runs with the videos — but some labels, like Melbourne-based Liberation Music, which owns the rights to "Lisztomania," just want them taken down.

One day, "the computer bots finally got around to noticing that I had used a clip from this song," he says. "Liberation Music then fired off threats of a lawsuit to me if I didn't take it down."

At first, YouTube took it down. But being a copyright attorney, Lessig knew his rights. He was entitled to use these clips in a lecture under a legal doctrine known as fair use.

"If I'm using it for purposes of critique, then I can use if even if I don't have permission of the original copyright owner," he says.

Liberation Music eventually backed down. But Lessig decided to invoke another part of the copyright law, "which basically polices bad-faith lawsuits," he says — threats made fraudulently or without proper basis.

Lessig is suing Liberation Music because he wants labels to stop relying on automated systems to send out takedown notices, he says.

Afraid To Fight Back

Liberation Music did not respond to NPR's numerous requests for comment, but this kind of takedown notice is fairly common, says Corynne McSherry, an attorney with the Electronic Frontier Foundation, a nonprofit digital rights group, who is representing Lessig.

"I get contacted all the time by folks who have had their material taken down," she says. "And often I'll go and I'll take a look at what's taken down, and it's clearly ridiculous."

The problem is that a lot of those people are afraid to fight back. If they lose, they might have to pay up to $150,000 a song, McSherry says. "And for most regular people that's a pretty scary possibility."

It certainly was to Bob Cronin, a DJ living in Atlanta who creates mashups of songs and occasionally posts them online. His mashups mix together clips from different bands — like the Beastie Boys and the Beatles and Jay Z — and sometimes he adds electronic drumbeats.

He says he's "really just trying to make music that's fun and surprising" for people, where they recognize tracks they like.

It was fun until Cronin got a notice — take it down or be sued.

"Basically, I was scared," he says. "When you're a guy like me you have everything to lose, and you really are not going to get a lot back from fighting Warner Bros. or something."

While it's somewhat debatable as to whether Cronin's mashups are protected speech, there isn't much doubt that Lessig's lecture is a fair use.

"What we've got is this computerized system threatening people about content that's on the Web, much of it legally on the Web," Lessig says.

The problem, he says, is the impact: "what we think of as a very significant chilling of completely legitimate and protected speech."

Lessig hopes his suit will set a precedent that will persuade copyright holders to put human beings who know the law back into the equation.

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Transcript

ROBERT SIEGEL, HOST:

An Australian record label may have picked a fight with the wrong guy. The label sent a standard takedown notice when computers identified their music in a video online. Well, it turns out that video was posted by one of the world's most famous copyright attorneys. And as NPR's Laura Sydell reports, he is suing the record company right back.

LAURA SYDELL, BYLINE: Lawrence Lessig has travelled around the world doing a lecture about how copyright law needs to adapt to the Internet age.

LAWRENCE LESSIG: I showed a series of examples of how people were using the Internet in order to create culture and share their culture and remix other people's creations. And a particularly powerful example of this is a series of remixes and the song is "Lisztomania."

(SOUNDBITE FROM SONG, "LISZTOMANIA")

LESSIG: And somebody took that song and remixed it with clips from the movie "The Breakfast Club."

SYDELL: The video went viral. It inspired other videos in which people pretended to be the actors in "The Breakfast Club" dancing to "Lisztomania" by the band Phoenix. Lessig posted his lecture on YouTube. YouTube uses a technology that scans videos and finds copyrighted songs.

Many labels and artists have agreed to let the songs stay up, in return they get a cut of the money YouTube gets from ads it runs with the videos. But some labels, like Liberation Music which owns the rights to "Lisztomania," just want it taken down.

LESSIG: The computer bots finally got around to noticing that I had used a clip from this song "Lisztomania." Liberation Music then fired off threats of a lawsuit to me if I didn't take it down.

SYDELL: At first, YouTube did take it down. But being a copyright attorney, Lessig knew his rights. He was entitled to use these clips in a lecture under a legal doctrine known as fair use.

LESSIG: If I'm using it for purposes of critique, then I can use if even if I don't have permission of the original copyright owner.

SYDELL: Liberation Music eventually backed down. But too late, from Lessig's point of view. He's invoking another part of the copyright law.

LESSIG: Which basically polices bad-faith lawsuits, bad-faith threats made fraudulently or without proper basis. And our view is that's exactly what happened in this case.

SYDELL: Liberation Music did not respond to NPR's numerous requests for comment, but this kind of takedown notice is fairly common, according to Corynne McSherry, an attorney with the Electronic Frontier Foundation who is representing Lawrence Lessig. The EFF is a nonprofit civil liberties group.

CORYNNE MCSHERRY: I get contacted all the time by folks who have had their material taken down and often I'll go and I'll take a look at what's been taken down, and it's clearly ridiculous.

SYDELL: The problem is that a lot of these people are afraid to fight back. If they lose, McSherry says, they might have to pay up to $150,000 a song.

MCSHERRY: And for most regular people, that's a pretty scary possibility.

SYDELL: It was certainly a scary possibility to Bob Cronin, a DJ living in Atlanta who does mash-ups of songs and occasionally posts them online.

(SOUNDBITE OF MUSIC)

BOB CRONIN: So really it's just trying to make music that's fun and surprising and something where they recognize both tracks and are like, oh, it's that great '80s tune I like.

(SOUNDBITE OF MUSIC)

SYDELL: It was fun until Cronin got a notice: take it down or be sued.

CRONIN: Basically, I was scared. It's what do you have to gain, what do you have to lose? And when you're a guy like me, you have everything to lose, and you really are not going to get a lot back from fighting Warner Bros. or something.

SYDELL: While it's somewhat debatable as to whether Cronin's mash-ups are protected speech, there isn't much doubt that Lessig's lecture is a fair use. Lessig is suing Liberation Music because he wants labels to stop relying on automated systems to send out takedown notices.

LESSIG: What we've got is this computerized system threatening people about content that's on the Web, much of it, and certainly in my case, legally on the Web, which is leading to what we think of as a very significant chilling of completely legitimate and protected speech.

SYDELL: Lessig hopes his suit will set a precedent that will persuade copyright holders to put human beings who know the law back into the equation. Laura Sydell, NPR News. Transcript provided by NPR, Copyright NPR.