Copyright Holder Barks Up the Wrong Tree - Fordham Intellectual Property, Media & Entertainment Law Journal
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Copyright Holder Barks Up the Wrong Tree

Copyright Holder Barks Up the Wrong Tree

According to a recent report on NPR’s All Tech Considered, renowned copyright attorney Lawrence Lessig is pushing back against an Australian record label after he received an automated takedown notice alleging copyright infringement. Lessig had been conducting a series of lectures about how the Internet age has brought with it new methods of remixing and sharing material, and why copyright law should reflect the evolving culture. Part of the lecture included a video remix of the 2009 Phoenix hit “Lisztomania,” set to clips of the famous library dance party from The Breakfast Club. After the video went viral on YouTube, Liberation Music threatened a lawsuit if it was not taken down.

As the NPR report explains, YouTube’s software can often detect when copyrighted material is uploaded to its servers. YouTube then notifies the rights-holders of the potentially infringing upload. Copyright owners can either demand that the video be taken down or take a percentage of the advertising revenue generated by the video’s page views. But a successful infringement claim of course relies on the absence of a defense; here, though the issue was never adjudicated, Lessig claimed fair use (as the lecture was commentary and critique) and Liberation Music eventually withdrew their threats. 

But Lessig wasn’t satisfied with only keeping Liberation Music at bay. Instead, he filed suit against them under Section 512(f) of the Digital Millennium Copyright Act, which establishes liability for “[a]ny person who knowingly materially misrepresents…that material or activity is infringing.” Presumably the provision was included to deter frivolous or weak claims, especially considering that many takedown notices come in the form of automated requests and are issued by well-financed music labels and film studios. This policy objective would seem to be directly in line with Lessig’s position that copyright law in America should be amended to better reflect an Internet culture where digital creativity necessarily involves a certain amount of borrowing and repurposing of copyrighted material.

But what kind of behavior constitutes a material representation rather than just a shaky, but wholly permissible, takedown notice? Section 512(c)(3)(v) requires that the party requesting a takedown include a statement of its own good-faith belief that the material was infringing. Whether or not a statement alone is enough to defeat a subsequent 512(f) claim, and whether or not other actions are required are questions currently before the court in Tuteur v. Crosley-CorcoranTuteur concerns not YouTube takedown notices but rather a dispute between two bloggers. Gina Crosley-Corcoran had sued Dr. Amy Tuteur, alleging an unlawful republication of her own picture; Tuteur counter-sued under 512(f). Without getting too embroiled in the facts, Tuteur likely has an easy fair-use or implied-license defense. In any event, oral arguments have already taken place and the forthcoming decision will partially determine the course of Lessig’s case against Liberation Music.

A nominal loss might still be a victory for Lessig, though, who has claimed that one of his goals is to stop sophisticated copyright holders from relying exclusively on computer software to issue takedown notices. If the eventual decision establishes a higher standard for takedown requesters, then perhaps the chilling effect on digital creativity could be substantially reduced–or so Lessig would hope.

Stephen Dixon

Stephen Dixon is a second-year student at Fordham Law and a staff member of the Intellectual Property, Media and Entertainment Law Journal. A graduate of the University of Wisconsin, his interest in copyright stems from an intention to practice entertainment law after graduation. He will never tire of defending Prince, whom he believes should perform at the Super Bowl Halftime Show every year.