Harvard Law School professor Lawrence Lessig has gone to court seeking clarification that his use of copyrighted music in an amateur dance video illustrating one of his lectures on YouTube constitutes fair use.
Lessig filed suit on Thursday against Liberation Music Pty. Ltd. in the District of Massachusetts for threatening to sue him over his use of the song "Lisztomania" by the French band Phoenix.
The video in question shows Lessig’s June 4 keynote address to a Creative Commons conference in Seoul, South Korea. He posted it on YouTube on June 8, including five clips of people dancing to “Lisztomania” to show how young people use the Internet to communicate.
At the end of June, Lessig received a notice that YouTube had blocked the video because it contained content owned or licensed by Viacom Inc. Liberation Music subsequently submitted a takedown notice to YouTube targeting the video.
Lessig submitted a counter-notice to YouTube in early July. On July 8, Liberation Music sent him an email threatening to sue for infringement within 72 hours unless he retracted his counter-notice. He complied on July 10, but followed up with Thursday’s lawsuit.
He seeks a declaratory judgment that he didn’t violate copyright laws plus a ruling that Liberation Music violated the Digital Millennium Copyright Act by sending a bad-faith takedown notice that materially misrepresented that that the video infringed its copyright.
Lessig noted that he used clips that were only 10 seconds to 47 seconds long in a non-commercial and highly transformative way, as allowed under the Copyright Act’s fair-use exception.
“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,” according to the complaint.
Lessig seeks unspecified damages plus costs, including attorney’s fees. The Electronic Frontier Foundation and Boston Jones Day partner Christopher Morrison represent Lessig pro bono.
In an emailed reply to questions about his case, Lessig expressed concern about an upswing in “baseless takedown claims” encouraged by automated content technology developed by companies like YouTube.
He said he understands that copyright law should punish pirates to deter theft.
“I don't necessarily agree with it, but I get it. The same argument should apply to copyright owners who abuse the enforcement system,” he said. “If we are successful, the costs of that bad behavior will be clearer to these copyright owners, and if it is, I am hopeful we will have less of this abuse.”
The Australia-based Liberation did not immediately respond to an e-mailed request for comment.
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