When Harvard Law Prof. Lawrence Lessig uploaded his 2010 Creative Commons Conference keynote address in Seoul to YouTube, the last thing he expected was a legal confrontation. His lecture included several videos, including one showing people dancing to a copyrighted song, Lisztomania, to demonstrate the effect of the Internet on the communication of young people.
To his consternation, Liberation Music, claiming to own the tune’s copyright, filed a Digital Millennium Copyright Act take-down notice to force YouTube to remove Lessig’s video. With the help of the Electronic Frontier Foundation, Lessig fired back, filing a complaint against Liberation in federal court last Thursday for violation of Section 512(f) of the DMCA.
The professor and the foundation hope to school Liberation and other quick-trigger take-down issuers in court about copyright’s Fair Use Doctrine, which allows for and even shields educational and nonprofit uses of copyrighted material. In his complaint, Lessig asserts his use of the song was noncommercial, minimal and caused no market harm. Further, he suggests that Liberation’s overreach in copyright enforcement violates his First Amendment right to freedom of expression.
Liberation’s take-down of Lessig’s lecture appears particularly egregious because so many performances of the song still fly freely in cyberspace, sans DMCA threat. And while this kerfuffle has gotten Liberation some free attention, the Down Under record company may not fully be grasping the interconnection of music consumers and copyright owners and the greater market potential of favorably treating versus battling with those who showcase their product. Tussling needlessly with customers, arguably, undercuts how Internet powerhouses like YouTube and Apple can help firms with publicity and marketing — efforts that have, for example, seen Apple sell 25 billion songs worldwide. As the recording industry has found, albeit slowly, is that it pays to pack a big legal punch with certain well-targeted pirates — with take-down notices and infringement lawsuits seeking big penalties — but provoking online communities with legal actions that aren’t crafted with meticulous care also can have their buzzy consequence.
And in case the music at the center of this dispute has slipped out of your collection, here’s a South Korean mash-up — one of the 840,000-plus that YouTube finds in seconds for Lisztomania: