Label Threatening Larry Lessig With Insane Infringement Claim Over Fair Use Video Caves In, Pays Up

Last summer, we wrote about what appeared to be a suicidal Australian record label, Liberation Music, which issued a DMCA claim (after first having a disputed ContentID claim) on a classic presentation by famed professor (and copyright/fair use expert) Larry Lessig, in which he discusses fair use and creativity, using as an example, some clips that made use of the song “Lisztomania” by the band Phoenix. Liberation holds the Australian (not US) rights to that song, but still went DMCA crazy. Lessig filed a counter-notice and Liberation (again, apparently having no idea what it was doing) sent Lessig a letter saying that it would be filing a copyright infringement lawsuit against him if he didn’t retract his counter-notice. The whole thing was bizarre. It was as if whoever was doing all of this at Liberation Music was unaware of basic copyright law, the concept of fair use, how the DMCA works and (most importantly) who Larry Lessig is. In response, Lessig did the appropriate thing and filed for declaratory judgment and (more importantly) sought damages under section 512(f) of the DMCA, the nearly toothless clause of the DMCA that lets victims of bogus takedowns seek damages. As we’ve been pointing out for years 512(f) is almost entirely useless because courts almost never enforce it — and we hoped that with such a clear cut case, we might finally get a good 512(f) ruling on the books.

It would appear that Liberation realized it was going to lose and lose big, and so it’s agreed to settle, paying an undisclosed sum to Lessig (who is passing it along to the EFF, who worked on the case) and agreeing to change its practices with regards to takedowns and legal threats. Amazingly, the company more or less admitted what people suspected: it just had some clueless employee in charge of all of this:

As a condition of the settlement, Liberation Music submitted a declaration explaining its takedown procedures. Liberation Music had allowed a single employee to use YouTube’s automatic Content ID system to initiate the takedown process and then, when Lessig challenged the takedown, threaten a lawsuit. The employee, who did not have a legal background, did not actually review Lessig’s video before issuing a threat of a lawsuit.

Liberation Music’s new policy will still rely on YouTube’s system, but it will ensure that no takedown notice is issued without human review, including fair use considerations. Liberation Music will also limit its copyright enforcement to jurisdictions where it actually owns or administers the copyright.

Of course, I’m sure some of you (like me) will be slightly disappointed that the case settled this way, rather than getting a clear ruling in favor of a 512(f) sanction. In fact, I’m pretty sure that both EFF and Lessig would like such a ruling as well. But, there’s also reality to deal with here, and specifically it appears that Liberation more or less folded like a cheap card table once it realized the legal position it was in. If a party basically offers to settle for terms that match what it would likely get in a final court ruling, and the other party doesn’t accept, courts tend to look very negatively on that situation. While there would be extra value in having a final ruling in the case, rejecting a settlement offer that is a complete capitulation would likely lead to an angry judge questioning why he or she was wasting time doing something that was more or less worked out privately outside the court. District courts want to focus on making sure justice is served, not on setting precedent for future cases, so if the settlement matches that, it wants you to take it. Given that, it’s no surprise that Lessig and EFF went with the settlement. While it’s a little disappointing that the amount was kept secret, I’m sure that the folks at EFF will put it to good use, hopefully fighting more 512(f) fights.

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