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Lawrence Lessig Sues Over Takedown of YouTube Video Featuring Phoenix Song

The Harvard professor says that he was threatened by a music publisher over a "fair use" of "Lisztomania."

Phoenix Band Stage - H 2013
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Phoenix performing onstage

Lawrence Lessig, the famed Harvard professor whose work in intellectual property circles has been widely influential, has filed a lawsuit against Liberation Music Pty Ltd, a publisher of Phoenix songs.

According to a complaint filed in Massachusetts federal court on Thursday, Lessig posted a video on YouTube of a 49-minute lecture titled "Open" he gave at a 2010 conference of Creative Commons in South Korea. In the video, Lessig discusses the present and future of cultural and technological innovation and used a set of clips where groups of people are dancing to the hit Phoenix song "Lisztomania."

After the posting, Lessig says he received a notice from YouTube that his posting had been identified as having content owned or licensed by Viacom. Lessig's video was blocked. The professor filed a dispute, and then, "when YouTube was set to restore access to the video, Liberation Music, and/or its representative, issued a DMCA takedown notice," says the complaint.

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What followed was an exchange of counter-notices and discussion directly between Liberation and Lessig. The professor says he was told in a July 8 e-mail that he was going to be sued if he didn't retract his counter-notice. Lessig did so, but is now going to court and seeking declaratory relief.

The development marks the latest escalation over the Digital Millennium Copyright Act, which was enacted in 1998 with the intention of updating copyright laws for the Internet.

Almost a decade after the DMCA was passed, Viacom sued YouTube and alleged massive copyright infringement by the UGC site. As a result of this lawsuit, and other threats, YouTube bolstered its takedown regime in an effort to gain DMCA safe harbor from copyright liability.

Over the years, YouTube has been accused of being too aggressive. For example, during the 2008 presidential campaign, John McCain's reps sent a letter to the website asking that it analyze fair use before making decisions about whether to take down videos flagged by copyright holders.

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In other instances, victims of takedowns have directly challenged copyright holders for allegedly abusing the DMCA by being over-assertive with copyright notices without any consideration of fair use. The most famous case is one against Universal Music by Stephanie Lenz, who uploaded a 29-second video clip of her toddler dancing to the 1984 Prince hit "Let's Go Crazy." That dispute is now on appeal. There are others. For example, there's an ongoing dispute by a songwriter against Summit Entertainment over a song and cover art that was flagged for infringing the studio's Twilight franchise.

As those cases in other judicial circuits shape the law on whether and how much copyright holders need to consider fair use before registering a takedown notice, Lessig is making his own stand.

Lessig helped found the Creative Commons as a way to allow more permissive licensing.

He used "Lisztomania" as an example of how young people were using videos and other tools to create and communicate on the Internet. "The 'Lisztomania' copycat video phenomenon started 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," says the lawsuit.

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The professor saw an example of the type of activity online he appreciates and wanted to use his as an illustration. He believes that's legitimate.

"Professor Lessig’s purpose was non-commercial and highly transformative, in that it was entirely different from Phoenix’s original purpose in creating the work," says the lawsuit in spelling out the arguments on why his clip is a fair use and not a copyright infringement. "Whereas Phoenix's original purpose was presumably to entertain music fans, and to make money doing so, Professor Lessig's purpose was educational, and neither Professor Lessig nor Creative Commons gained any profit from the illustrative use of the clips in question in the 'Open' lecture."

Lessig also says the nature of the work was creative, that the amount was minimal and that it caused no market harm. These are part of the four factors that make up a fair use analysis.

Represented by Christopher Morrison at Jones Day and attorneys at the Electronic Frontier Foundation, Lessig is seeking declaratory relief that use of "Lisztomania" was lawful and that Liberation Music is in violation of Section 512(f) of the DMCA because it "acted in bad faith when it sent the takedown notice, knowingly and materially misrepresenting that it had concluded that the video was infringing."

Liberation Music couldn't immediately be reached for comment.

E-mail: Eriq.Gardner@THR.com
Twitter: @eriqgardner