Not Smart: Warner Music Issues DMCA Takedown On Larry Lessig Presentation

from the this-is-going-to-hurt dept

If there were anyone out there to whom you would not want to send a random takedown notice for an online video, it would probably be Larry Lessig. Given that Lessig has become the public face for those who feel that copyright has been stretched too far, as well as being a founder of Stanford’s Fair Use Project, and who’s written multiple books on these issues, you would think (just maybe) that any copyright holder would at least think twice before sending a DMCA takedown on a Larry Lessig presentation.

Apparently, you’d be wrong.

Lessig has announced that Warner Music issued a DMCA takedown on one of Lessig’s own presentations, in which his use is almost certainly fair use. Lessig, of course, is a lawyer, and a big supporter of fair use, so it’s no surprise that he’s also said he’s going to be fighting this.

The thing that I can’t understand is who at Warner Music would decide this was a good idea? We’ve seen Warner make a number of highly questionable moves over the past six months, but this may be the most incomprehensible. Warner Music may claim it was an accident or that it didn’t mean to send the takedown, but that’s hard to fathom as well. The DMCA rules are pretty clear, that the filer needs to clearly own the content, and previously lawsuits have said they need to take fair use into account. I’m guessing we haven’t heard the end of this yet…

Update: Some people have been asking which Lessig presentation was taken down. It’s been reposted elsewhere, so you can check it out, and then explain how Warner Music has any claim to a takedown.

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Companies: warner music group

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Comments on “Not Smart: Warner Music Issues DMCA Takedown On Larry Lessig Presentation”

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69 Comments
Anonymous Coward says:

Hey, the world is full of stupid ideas.

That peanut company CEO got an email from his plant manager telling him their peanuts contained salmonella, the CEO wrote back to ship them anyway. He now will probably be charged with at least manslaughter.

Some guy at the White House decides that they need to fly a 747 over southern Manhattan at 1,000 feet. He might just be fired.

Countless guys actually answer yes to the question “does this make me look fat?”

Beauty may be skin deep, but stupid is to the bone.

Alligator says:

Re: Re: mistake = broken law

No, it’s not perjury because it’s not sworn testimony. But 512(f) imposes liability for damages on anyone who materially misrepresents that content or an activity is infringing in a takedown notice. As others, however, have noted recovering damages under 512(f) requires going to court. You only need an internet connection to send a takedown notice.

NullOp says:

Hmm.....

Seems Warner has come up dumber than a bag of hammers. Send a take-down notice to the guy who literally wrote the book on fair use. The fact is, i’m sure this was decided by committee. It usually takes a committee to something truly stupid although, as far as I know, they are still awarding Darwin awards.

Jonnan says:

Re: Hmm.....

Just out of curiosity, why do people say that? Virtually every really stupid decision I’ve ever seen can actually be tracked back to one specific stupid person.

I’ll admit, sometimes they are misapplying a rule that came out of a committee, but the rule generally makes perfect sense to anyone that’s not an idiot.

Simon Cast (profile) says:

Lack of penalties

I think one of the items that leads to abuse of these types of laws is that there is no ready penalty for misuse. There is a long standing argument about “day in court” but I think this has gone to far. I know that defendants can win in court but the lopsided strength of the parties is going to lead to out-of-court settlements that don’t “punish” companies for abuse.

All laws particular ones like DMCA, should include server penalties for mis-use that can be applied either by a regulator or via petition to a court. Mis-use would include failure to take in account fair use, falsely claiming copyright etc. Penalties would be along the lines of:
* Suspension of rights on a piece of material
* Suspension of action or re-course for a duration

The DMCA isn’t going to go away any time soon. The problem is companies receive no penalty for abusing the system and until they do they aren’t going to stop.

Yeebok (profile) says:

Re: Lack of penalties

“All laws particular ones like DMCA, should include server penalties for mis-use that can be applied …”

You mean confiscate their server ? Cool. ๐Ÿ™‚

I agree though – almost every law should have a means of stopping and penalising illegitimate or ‘outside the spirit of the law’ usage – whether the takedown is automated or not (I don’t think they should be allowed either).

Otherwise in a wildly exaggerated scenario a Warner artist may name their song “High Street” then have that text found on a Google Streetview (the sign for said street) and receive a takedown notice from Warner.

Mike Peele says:

DMCA On Larry Lessig

Should any of this this surprise us? Think about the “brilliant” idea Sony had putting a root kit on their cds. (I hope the exec responsible for that is sleeping on a park bench. I am a computer tech and have had to remove the bugger.) Apparently corporate politicians are just as out of touch with reality as those inside the beltway.

Albert Bodenhamer says:

Possibly just a lone idiot?

Some people have suggested it’s an automated notice. Possible. It may also have been issued by an ignorant, underpaid drone in their enforcement department. “OK Johnny. Here’s your desk. You’re making minimum wage, because we haven’t figured out how to pay you less and get away with it. Your job is to surf the net and look for anything we own. If you’re in doubt, we own it. When you see something, here’s the form letter for the takedown notice.”

Keep in mind that MS sent a recruitment letter to RMS a few years back. Probably the same sort of idiocy.

Monty says:

No, this is a genius move by Time Warner

Time Warner must have a team of expensive, knowledgeable lawyers as well, and I am willing to bet they knew EXACTLY what they were doing when they issued this takedown notice. They knew that Lessig would respond in this way, and Time Warner plans on winning. If they do, this will be a huge blow to fair use, and that’s what Time Warner wants.

Anonymous Coward says:

Re: No, this is a genius move by Time Warner

In all likelihood this was an automated notice. Time Warner doesn’t have to think twice about sending those things.
Lawyers representing TW and other rights holders helped write the DMCA. The only way a rights holder can perjure themselves is if they claim ownership of content that they don’t actually have the rights to.

THERE IS NO PENALTY IF, BY “ACCIDENT”, A TAKEDOWN NOTICE IS SENT TO SOMEONE ERRONEOUSLY. If Time Warner has the rights to the content that they CLAIM was used in Larry’s presentation, there is no penalty for sending a takedown notice for something that is patently fair-use. They wouldn’t even be in the wrong legally if said content wasn’t actually in the presentation at all.

The DMCA was written with the help of lawyers from rights holders and they made sure that there is zero liability on their part in cases such as this.

That said, I am not a brilliant law professor, specializing in IP, from Stanford…I would be absolutely delighted if Lessig found some way to legally bitch slap those pricks (and somehow force them to go about the whole takedown procedure in a more restrained way).

Michael Chermside (profile) says:

My opinion after viewing the presentation.

For what it’s worth, I DID just view this particular presentation, looking for possible misuses. Although I do not know what particular piece of copyrighted material Warner Music may be objecting to, I noticed there was extensive use throughout the presentation of excerpts and snippets from material. One (or more likely several) of these are likely owned by Warner Music. In each and every case, the excerpts were brief (mostly VERY brief — rapid presentation of supporting material was used as a rhetorical device). And all were used to illustrate a point; arguable as briefly as would be sufficient to illustrate the point he was making. Thus (considering the 4 factors that define free use):

(1) The entire presentation is offered freely on the internet; the purpose of the presentation is to educate people on Dr. Lessig’s opinion on this subject (about which is an acknowledged expert). To me, that sounds non-commercial and/or educational.

(2) I don’t know the nature of the copyrighted work in question. I expect it is a snippet of a music recording.

(3) The brief snippets are much shorter than the work as a whole.

(4) And few are likely to use this presentation as a way of listening to the music (or viewing the video, if that’s what’s being objected to) because it is an inconvenient form for that purpose and because only brief excerpts are used. I doubt the distribution of this video will harm sales of the music. For some of the pieces used (especially some of the mix videos) it might *aid* sales by pointing them out to people — but those are probably not what Warner is talking about anyhow.

So I’d say it is clearly fair use. That’s only a personal opinion — I’m not licensed to practice law.

Alligator says:

Warner probably found out when the rest of us did

As we’ve already seen, Warner and YouTube had a fight, so Warner took its ball and went home. That is, Warner used ContentID to automatically send takedown notices for any video matched a Warner audio fingerprint. Because Warner wanted to remove all of its content, not just infringing content, it did not examine any of the flagged videos — it simply sent takedown notices.

So, this is not some brilliant strategy, nor is it due to an untrained, minimum wage employee. It’s merely the high profile result of automated takedown notices.

John P says:

A bug in the system.

I watched the video being claimed to infringe copyright law. In my opinion, any rational human being, after watching the presentation, would not even consider the legal considerations under existing copyright law.

The imagery, audio, and remixes used, poignantly depicted the realities of the artistry and culture spreading online today. Some of the examples were truly amazing pieces of work, which would have been impossible to create as little as a few years ago.

This was obviously a social and political statement, using appropriate examples from existing culture ( and none in it’s entirety), to reinforce the author’s position, and facilitate the understanding of those viewing the statement.

If this was an automated take down notice, then it clearly shows a flaw in the base coding of the detection system. There is absolutely NO method of determining the validity of use in an automated manner. If this was not an automated take down notice, it would indicate a more profound problem.

Does a letter or notice from a lawyer have the force of law? Just receiving a letter claiming their belief in infringement does not constitute proof of infringement. Yet the receipt of such letters is followed by take down as if it were a court order stating proof of infringement requiring action. This makes no sense to me at all, except in the use of law as form of duress or extortion – clearly not what the principle of law is designed for.

With obligatory IANAL, I presume no defence other than the viewing of this presentation would be required to convince any rational human being of the falsity of infringement claims. Unfortunately, rationality may be in in short supply these days.

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