Fair Use Lecturer Comes Out Ahead - Fordham Intellectual Property, Media & Entertainment Law Journal
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Fair Use Lecturer Comes Out Ahead

Fair Use Lecturer Comes Out Ahead

On June 10th, 2010, Professor Lawrence Lessig of Harvard Law School gave a lecture on cultural communications on the internet, and posted a video of his lecture on YouTube.  This lecture included short snippets of the Phoenix song “Lisztomania,” the license for which is owned by Liberation Music.  These snippets were meant to illustrate new methods of cultural communication on the internet.  Liberation Music, Phoenix’s Australian record label, alleged copyright infringement and had the video removed from YouTube, while threatening legal action against Lessig.  Together with the Electronic Frontier Foundation and Jones Day LLC, Professor Lessig filed suit asking the court to rule that his use of the music was within the “fair use” exception to copyright law, and to prohibit Liberation from making further legal threats. 

Phoenix supported Lessig’s use of their music, and issued a statement indicating their support of fair use in general.  “Not only do we welcome the illustrative use of our music for educational purposes, but, more broadly, we encourage people getting inspired and making their own versions of our songs and videos and posting the result online.”  Phoenix’s response was similar to that of many of musicians who support fair use.

On February 27th, 2014, Liberation Music settled with Lessig and EFF, which is widely considered to be a win for the fair use advocate.  Part of the settlement was an agreement that Liberation Music would admit Lessig had the right to use their song.  The other part of the settlement was an undisclosed financial payment, which will be used by the EFF to continue their work on open access, a cause important to Lessig’s late friend, Aaron Swartz.  Aaron Swartz, as many remember, was the technology activist based at Massachusetts Institute of Technology who took his own life in 2013.

Liberation Music also revamped its takedown policy, changing from an automatic system to one that incorporates a human element.  A single employee monitoring the YouTube system tagged Lessig’s video, and then threatened a lawsuit when Lessig contested the takedown.  The employee was not a lawyer, nor did the employee actually review Lessig’s video prior to issuing the threat, a seeming failure in the system.  While Liberation will still rely on YouTube’s internal monitoring systems for initial tagging of videos, it will no longer issue a takedown notice without human review, which will include fair use considerations. In his statement after the settlement was announced, Lessig said “[h]opefully this lawsuit and this settlement will send a message to copyright owners to adopt fair takedown practices—or face the consequences.”

This settlement is largely seen as a win for fair use, as Liberation Music was required to admit Lessig’s right to use the intellectual property and also revamped its fair use and YouTube policies in light of this challenge.  It is yet to be seen how far-reaching a choice like this is, but it is certainly a step in the right direction for the music industry, which often lags behind technology in enforcing copyright.

Kaitlyn Schwendenman

Kaitlyn is a second year law student at Fordham. She first became interested in IP as a music student at New York University, when learning about copyright protection for musical works. Along with being a law student, she is an avid runner and cook.