5 ms·

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

67 points by jasonlbaptiste 18y ago

mattmaroon 18y ago
Once again, everyone in the tech industry assumes everyone not in the tech industry is stupid. That seems like exactly who I'd want to issue a takedown notice to if I were Warner (assuming I had a reasonably compelling case, which I make no judgment on here since I'm not an IP attorney, and I'm guessing neither is the author).
- tsally 18y ago
  Why would you want to issue a take down notice to one of the most well known IP lawyers out there? Big business thrives on settlements, not landmark court cases. How do you think big media got away with suing individuals for torrenting for so long? They forced settlements before an actual decision could be made. Hell, they even dropped cases they thought they were losing, not wanting to risk the impact of an unfavorable decision. Lessig wont settle, and that's why issuing a takedown notice to him is bad for Warner. Lessig will try to take the whole thing to the Supreme Court if he has to.
  - ph0rque 18y ago
    Maybe there's a mole at Warner who wants such a case?
  - menloparkbum 18y ago
    Why would you want to issue a take down notice to one of the most well known IP lawyers out there? Why wouldn't they? He's really a law professor. Lessig's actual court track record is not as impressive as his writing and speaking. All his copyright cases have either been dismissed, or else he lost. So, they probably know he's not that great in court. Thus if they beat him, they have the added bonus of sticking it to the leading copyright-reform spokesperson.
    - tsally 18y ago
      It has nothing to do with his ability as a lawyer. Rather, his track record is directly related to his progressive stance on copyright. If I lived in Iran, I could be the greatest lawyer in the world and still lose every case in which I argued for pot legalization. Lessig's stances are not as radical, but they are progressive enough to severely impact his judicial record. That's why he's such an important figure; he cares about his ideals, not about winning cases and taking home money.
      - menloparkbum 18y ago
        Right, that's partially my point. The entire judicial system is still stacked against him. If he takes on Warner and loses, not only does he lose that particular case, it sets a huge legal and cultural precedent AGAINST copyright reform, since he is the figurehead of the copyright reform movement. If he decides not to take on the case, he's not standing up for his own cause. I'm sorta with you because I'm not 100% convinced that Warner's lawyers really know what they are doing - they might be idiots. However, I'm giving them a 50-50 chance that maybe they know EXACTLY what they are doing. -edit- See mattmarroon's post - he got my thought better than I did.
        mechanical_fish 18y ago
        it sets a huge legal and cultural precedent AGAINST copyright reform, since he is the figurehead of the copyright reform movement Um, do you not understand how the legal system works? Or are you far more breathtakingly cynical than Larry Lessig will ever be? The US legal system is not a battle of personalities. It's not a popularity contest. It's not a political game, where lawyers campaign for votes. The judicial system is not "stacked against Larry Lessig" -- though some of his legal arguments have had more success than others, they are each judged on their merits. And beating Larry Lessig in some minor copyright suit won't magically discredit him, just as it wouldn't discredit him if he had some unpaid parking tickets. His status as a "figurehead" won't really affect the outcome either (except to the extent that his fame is correlated with his ability to write really good legal arguments on exactly this topic -- and the fact that judges will probably tend to look with favor on a video that was used as part of an educational lecture about copyright law). Judges will not be star-struck by Lessig. They have seen famous law professors before. Even if this case went before a jury, surely both sides are bright enough to select jurors who have never heard of Lessig, thus rendering his fame relatively moot. There have been times, of course, when these abstractions have broken down. But not very often. And if a corrupt judge or jury does decide to throw the case one way or the other, it's likely to get fixed (or, depending on your perspective, screwed up again) on appeal. If he loses the case he might pay some damages, that's all. Those damages are likely to be insignificant, since if this isn't found to be fair use it will surely be found to be within a hair of fair use -- it's not for profit, it's for educational and critical purposes, it was done in good faith with the very reasonable expectation that it would be fair use, etc. Nothing will happen to Lessig. And even if it did, it shouldn't hurt the cause. If Lessig is found to have violated fair use the case is boring, from a DMCA standpoint: Everyone knows that you're not allowed to copy stuff outside of fair use, so Lessig is guilty, he owes damages, the end. The possibility of an interesting precedent will only arise if the video is found to be fair use -- in which case Warner is guilty of using the DMCA to exercise prior restraint over legal content, and Lessig will go to town with his brief-writing skills. In other words, the likely explanation is the simple one. Warner is handing out DMCA notices by the bushel, and they sent this one out without looking too carefully. Oops.
  - mattmaroon 18y ago
    Why would you not want to issue a take down notice to one of the most well-known IP lawyers out there? Warner isn't doing it to directly profit off of the case, just as they weren't with torrentors. The pittance they got from those settlements was irrelevant. Their goal is deterrent. I'd bet anything that one of two things are the case. 1, this is some sort of mishap, carried out by an automated program that scans for IP, or some low level employee hired to issue DMCA notices (or the latter in conjunction with the former.) Or 2, the industry has a list of high profile enemies who they've just been waiting for to screw up, and they finally caught the biggest of them doing something their legal minds think has a reasonable shot of being proven a violation of fair use in court. If it's the latter, I'd do it too if I were them.
    - menloparkbum 18y ago
      1, this is some sort of mishap, carried out by an automated program that scans for IP, or some low level employee hired to issue DMCA notices (or the latter in conjunction with the former.) Or 2, the industry has a list of high profile enemies who they've just been waiting for to screw up, and they finally caught the biggest of them doing something their legal minds think has a reasonable shot of being proven a violation of fair use in court. yes, that is what I was trying to say, too. (badly)
    - tsally 18y ago
      It seems like an awfully big gamble given that they could lose. But well argued and written.
    - jerf 18y ago
      For a copyright precedent, this strikes me as a terrible, terrible case for them. dreish is correct about the nature of Fair Use, and furher remember that underlying those court-generated criteria for Fair Use lies the fact that Free Speech actually trumps copyright law; the First Amendment is an amendment, whereas the Constitutional provision for copyright is in the Constitution proper, not an amendment. They've been harmonized, at least in theory (so no, you don't get to just claim Free Speech destroys copyright entirely), but if there is a conflict, the 1st wins. And this is political free speech, debating how the law works. This is "copyright infringement"/Fair Use at the highest standard of education and political debate, where the courts should most fear to tread. Obviously he could take it too far, but given the fuzziness of Fair Use and how it tends to be ruled this is nowhere near egregious violation. I favor the automated failure theory. If they were out to make a point I'm sure they could find something more clear, and a target less well defended (and funded) than a famous law professor. There's little upside for them here (even if they win, they only create a martyr) and some downside.
- tvon 18y ago
  > Once again, everyone in the tech industry assumes everyone not in the tech industry is stupid. To be fair - as far as the law is concerned - this is a learned response. No, lawyers aren't idiots, but there is a history of lawyers and judges making decisions that affect the tech industry and those within the tech industry while clearly not understanding the issues at hand. > That seems like exactly who I'd want to issue a takedown notice to if I were Warner (...) True, if Warner knows they have a rock solid case and assuming they know who they were picking a fight with. On the other hand, to date Warner and their ilk have mostly sent out waves of takedown notices on generally unproven issues under the apparent assumption that they will receive little to no push-back. Or at least that's how it seems to me (IANAL).
sketerpot 18y ago
The video in question: http://blip.tv/file/1937322 http://blip.tv/file/1937322 And yes, Lessig is going to fight this.
nfriedly 18y ago
According to one of the comments from slashdot, Lessig goes beyond fair use in his presentation: ---------------------------- He uses a 50 second clip of The Muppet Show's "Ma Na Ma Na" [1] which is a very short skit track of about 2:29 minutes. He shows it being set to an Anime Music video mash up of Vampire Hunter D Blood Lust. I can't seem to track down who would be the rights holder of this track but I'm guessing it's Warner. I have only seen 15 minutes of his presentation so it's possible there are other violations. Larry: Non-free Audio Fair Use for music constitutes 10% or 30 seconds of a song (which ever is shorter) and it must be in a low enough quality (didn't investigate the audio on this video to find out if it satisfied Ogg quality of 0 rule). For the rest of the 15 minutes I saw you looked fine but this stuck out at me. Pick your battles wisely and adhere to this rule next time. -------------------------- Source: http://slashdot.org/comments.pl?sid=1216733&cid=27765265 http://slashdot.org/comments.pl?sid=1216733&cid=27765265 [1] http://www.youtube.com/watch?v=7lgcQUQZBtE&feature=related http://www.youtube.com/watch?v=7lgcQUQZBtE&feature=relat...
- dreish 18y ago
  This is a load of nonsense, of course. Wikipedia's guidelines for fair use within Wikipedia (which is what the above quotes, unattributed) are not based on any specific legal doctrine about what exactly is fair use. Suggesting that Lessig violated copyright law because he didn't follow Wikipedia's guidelines is absurd. Here are the criteria that would be tested in court. They are not numeric, they are matters of judgment: http://www.copyright.gov/fls/fl102.html http://www.copyright.gov/fls/fl102.html
  - chris11 18y ago
    Yeah, I'm not at all convinced that it is infringing. 1. It can definitely be argued that it is for an educational use, and I can't think of any valid argument that it is for a commercial purpose. 2. It's a user created music video, so he has a case here. 3. Warner might have a good argument here. Lessig did use about 50s of the song. 4. I really don't see Lessig's presentation as having a useful replacement for the song. Lessig starts playing a lot of copyrighted material around 9 minutes into the presentation to illustrate remixes.The Muppets song is played at about the 11.00 min mark. The presentation is about 50 minutes long, so I really doubt that his purpose was to violate copyright law or to even play a specific song.

Once again, everyone in the tech industry assumes everyone not in the tech industry is stupid. That seems like exactly who I'd want to issue a takedown notice to if I were Warner (assuming I had a reasonably compelling case, which I make no judgment on here since I'm not an IP attorney, and I'm guessing neither is the author).

tsally 18y ago
Why would you want to issue a take down notice to one of the most well known IP lawyers out there? Big business thrives on settlements, not landmark court cases. How do you think big media got away with suing individuals for torrenting for so long? They forced settlements before an actual decision could be made. Hell, they even dropped cases they thought they were losing, not wanting to risk the impact of an unfavorable decision. Lessig wont settle, and that's why issuing a takedown notice to him is bad for Warner. Lessig will try to take the whole thing to the Supreme Court if he has to.
- ph0rque 18y ago
  Maybe there's a mole at Warner who wants such a case?
- menloparkbum 18y ago
  Why would you want to issue a take down notice to one of the most well known IP lawyers out there? Why wouldn't they? He's really a law professor. Lessig's actual court track record is not as impressive as his writing and speaking. All his copyright cases have either been dismissed, or else he lost. So, they probably know he's not that great in court. Thus if they beat him, they have the added bonus of sticking it to the leading copyright-reform spokesperson.
  - tsally 18y ago
    It has nothing to do with his ability as a lawyer. Rather, his track record is directly related to his progressive stance on copyright. If I lived in Iran, I could be the greatest lawyer in the world and still lose every case in which I argued for pot legalization. Lessig's stances are not as radical, but they are progressive enough to severely impact his judicial record. That's why he's such an important figure; he cares about his ideals, not about winning cases and taking home money.
    - menloparkbum 18y ago
      Right, that's partially my point. The entire judicial system is still stacked against him. If he takes on Warner and loses, not only does he lose that particular case, it sets a huge legal and cultural precedent AGAINST copyright reform, since he is the figurehead of the copyright reform movement. If he decides not to take on the case, he's not standing up for his own cause. I'm sorta with you because I'm not 100% convinced that Warner's lawyers really know what they are doing - they might be idiots. However, I'm giving them a 50-50 chance that maybe they know EXACTLY what they are doing. -edit- See mattmarroon's post - he got my thought better than I did.
      - mechanical_fish 18y ago
        it sets a huge legal and cultural precedent AGAINST copyright reform, since he is the figurehead of the copyright reform movement Um, do you not understand how the legal system works? Or are you far more breathtakingly cynical than Larry Lessig will ever be? The US legal system is not a battle of personalities. It's not a popularity contest. It's not a political game, where lawyers campaign for votes. The judicial system is not "stacked against Larry Lessig" -- though some of his legal arguments have had more success than others, they are each judged on their merits. And beating Larry Lessig in some minor copyright suit won't magically discredit him, just as it wouldn't discredit him if he had some unpaid parking tickets. His status as a "figurehead" won't really affect the outcome either (except to the extent that his fame is correlated with his ability to write really good legal arguments on exactly this topic -- and the fact that judges will probably tend to look with favor on a video that was used as part of an educational lecture about copyright law). Judges will not be star-struck by Lessig. They have seen famous law professors before. Even if this case went before a jury, surely both sides are bright enough to select jurors who have never heard of Lessig, thus rendering his fame relatively moot. There have been times, of course, when these abstractions have broken down. But not very often. And if a corrupt judge or jury does decide to throw the case one way or the other, it's likely to get fixed (or, depending on your perspective, screwed up again) on appeal. If he loses the case he might pay some damages, that's all. Those damages are likely to be insignificant, since if this isn't found to be fair use it will surely be found to be within a hair of fair use -- it's not for profit, it's for educational and critical purposes, it was done in good faith with the very reasonable expectation that it would be fair use, etc. Nothing will happen to Lessig. And even if it did, it shouldn't hurt the cause. If Lessig is found to have violated fair use the case is boring, from a DMCA standpoint: Everyone knows that you're not allowed to copy stuff outside of fair use, so Lessig is guilty, he owes damages, the end. The possibility of an interesting precedent will only arise if the video is found to be fair use -- in which case Warner is guilty of using the DMCA to exercise prior restraint over legal content, and Lessig will go to town with his brief-writing skills. In other words, the likely explanation is the simple one. Warner is handing out DMCA notices by the bushel, and they sent this one out without looking too carefully. Oops.
- mattmaroon 18y ago
  Why would you not want to issue a take down notice to one of the most well-known IP lawyers out there? Warner isn't doing it to directly profit off of the case, just as they weren't with torrentors. The pittance they got from those settlements was irrelevant. Their goal is deterrent. I'd bet anything that one of two things are the case. 1, this is some sort of mishap, carried out by an automated program that scans for IP, or some low level employee hired to issue DMCA notices (or the latter in conjunction with the former.) Or 2, the industry has a list of high profile enemies who they've just been waiting for to screw up, and they finally caught the biggest of them doing something their legal minds think has a reasonable shot of being proven a violation of fair use in court. If it's the latter, I'd do it too if I were them.
  - menloparkbum 18y ago
    1, this is some sort of mishap, carried out by an automated program that scans for IP, or some low level employee hired to issue DMCA notices (or the latter in conjunction with the former.) Or 2, the industry has a list of high profile enemies who they've just been waiting for to screw up, and they finally caught the biggest of them doing something their legal minds think has a reasonable shot of being proven a violation of fair use in court. yes, that is what I was trying to say, too. (badly)
  - tsally 18y ago
    It seems like an awfully big gamble given that they could lose. But well argued and written.
  - jerf 18y ago
    For a copyright precedent, this strikes me as a terrible, terrible case for them. dreish is correct about the nature of Fair Use, and furher remember that underlying those court-generated criteria for Fair Use lies the fact that Free Speech actually trumps copyright law; the First Amendment is an amendment, whereas the Constitutional provision for copyright is in the Constitution proper, not an amendment. They've been harmonized, at least in theory (so no, you don't get to just claim Free Speech destroys copyright entirely), but if there is a conflict, the 1st wins. And this is political free speech, debating how the law works. This is "copyright infringement"/Fair Use at the highest standard of education and political debate, where the courts should most fear to tread. Obviously he could take it too far, but given the fuzziness of Fair Use and how it tends to be ruled this is nowhere near egregious violation. I favor the automated failure theory. If they were out to make a point I'm sure they could find something more clear, and a target less well defended (and funded) than a famous law professor. There's little upside for them here (even if they win, they only create a martyr) and some downside.
tvon 18y ago
> Once again, everyone in the tech industry assumes everyone not in the tech industry is stupid. To be fair - as far as the law is concerned - this is a learned response. No, lawyers aren't idiots, but there is a history of lawyers and judges making decisions that affect the tech industry and those within the tech industry while clearly not understanding the issues at hand. > That seems like exactly who I'd want to issue a takedown notice to if I were Warner (...) True, if Warner knows they have a rock solid case and assuming they know who they were picking a fight with. On the other hand, to date Warner and their ilk have mostly sent out waves of takedown notices on generally unproven issues under the apparent assumption that they will receive little to no push-back. Or at least that's how it seems to me (IANAL).

sketerpot 18y ago

The video in question: http://blip.tv/file/1937322 http://blip.tv/file/1937322 And yes, Lessig is going to fight this.

nfriedly 18y ago

According to one of the comments from slashdot, Lessig goes beyond fair use in his presentation: ---------------------------- He uses a 50 second clip of The Muppet Show's "Ma Na Ma Na" [1] which is a very short skit track of about 2:29 minutes. He shows it being set to an Anime Music video mash up of Vampire Hunter D Blood Lust. I can't seem to track down who would be the rights holder of this track but I'm guessing it's Warner. I have only seen 15 minutes of his presentation so it's possible there are other violations. Larry: Non-free Audio Fair Use for music constitutes 10% or 30 seconds of a song (which ever is shorter) and it must be in a low enough quality (didn't investigate the audio on this video to find out if it satisfied Ogg quality of 0 rule). For the rest of the 15 minutes I saw you looked fine but this stuck out at me. Pick your battles wisely and adhere to this rule next time. -------------------------- Source: http://slashdot.org/comments.pl?sid=1216733&cid=27765265 http://slashdot.org/comments.pl?sid=1216733&cid=27765265 [1] http://www.youtube.com/watch?v=7lgcQUQZBtE&feature=related http://www.youtube.com/watch?v=7lgcQUQZBtE&feature=relat...

dreish 18y ago
This is a load of nonsense, of course. Wikipedia's guidelines for fair use within Wikipedia (which is what the above quotes, unattributed) are not based on any specific legal doctrine about what exactly is fair use. Suggesting that Lessig violated copyright law because he didn't follow Wikipedia's guidelines is absurd. Here are the criteria that would be tested in court. They are not numeric, they are matters of judgment: http://www.copyright.gov/fls/fl102.html http://www.copyright.gov/fls/fl102.html
- chris11 18y ago
  Yeah, I'm not at all convinced that it is infringing. 1. It can definitely be argued that it is for an educational use, and I can't think of any valid argument that it is for a commercial purpose. 2. It's a user created music video, so he has a case here. 3. Warner might have a good argument here. Lessig did use about 50s of the song. 4. I really don't see Lessig's presentation as having a useful replacement for the song. Lessig starts playing a lot of copyrighted material around 9 minutes into the presentation to illustrate remixes.The Muppets song is played at about the 11.00 min mark. The presentation is about 50 minutes long, so I really doubt that his purpose was to violate copyright law or to even play a specific song.