Larry Lessig's books have long warned about the need for copyright moderation. Remix, in particular, warns that those that own rights in intellectual property may be stifling creativity in the digital era. This June, he posted a talk on YouTube which featured a “clip” of the band Phoenix’s song Lisztomania.
Dozens of groups produced videos featuring the song, all with the common theme of locals dancing in various geographical locations around the world. Each remix was produced as a kind of viral “reply” to every other video. Lessig’s point was to highlight how spontaneous outbreaks of on-line culture are "the latest in the time-honoured 'call and response' tradition of communication."
Good examples can be seen below:
The Digital Millennium Copyright Act (DMCA) specifically allows for holders of copyrights to notify YouTube that their Intellectual Property is on the site without their permission. YouTube is then obliged to take down the offending video under Section 512 DMCA. Because of the DMCA, YouTube largely escapes liability for hosting infringing material until it is notified that the video is infringing and then has a reasonable amount of time to remove the video.
The flip side for rights-owners is that if they make false claims about websites hosting infringing material, then they can be forced to pay damages under Section 512 (f). At any given time there is infringing material on YouTube, but often is allowed to remain on the site as it falls under the doctrine of American copyright law referred to as ‘fair use’. Lessig's legal argument is simply that using a clip of a video as he did in his presentation is to be considered under the fair use doctrine. the lecture was educational in nature, and neither he nor the sponsor Creative Commons, made any profit.
Copyright owners are notorious for making false claims against legitimate fair use. Unfortunately, YouTube is faced with making decisions with far-reaching implications about whether or not a ‘clip’ is infringing or whether it is ‘fair use’. Because liability starts at the moment of notification, websites often play it safe and remove content. Now Lessig has turned to the Electronic Frontier Foundation to help in a lawsuit against Liberation Music for seeking to remove the clip from YouTube.
The EFF and Lessig are seeking to have Liberation Music pay damages under section 512 (f) of the DMCA which requires copyright owners to pay damages when they go too far in issuing take-downs. There are extremely few cases where a copyright owner is taken to court for making a false claim like Lessig has done by raising an action against Liberation Music. The EFF's one lawsuit in this area has been the incredibly long-lasting Lenz v. Universal, the "dancing baby"lawsuit, where Universal sought to remove a video from YouTube of a dancing baby which contained a very small clip of Prince’s "Lets Go Crazy" playing in the background. That case, filed in 2007, is just now heading slowly towards an appeal court, and EFF has seen mixed results in that case.