An important development for fair use on YouTube

There has been much discussion regarding YouTube’s approaches to copyright protection. In many respects, what YouTube is doing is providing a set of institutions designed at reducing the transactions costs associated with managing copyright. At its best, YouTube allows copyright owners to assert ownership when their work or part of their work is used by creators on YouTube and then to monetise that content through ads. In this way, it opens up more revenue generating opportunities for copyright owners and, indeed, creates an environment whereby remixing or reuse of that material is encouraged rather than prohibited.

However, with a reduction in transaction costs comes a set of other concerns. The most important of these is that copyright owners may register a take-down-notice with YouTube that YouTube seems to pretty much automatically adhere to. So if you have a video with some music in the background, the copyright owner might order YouTube to take it down.

The problem is that not every use of copyrighted material is subject to a take-down. Those coming under “fair use” provisions in the US, should not be taken down because, you know, they can be used in that way, fairly. The problem is that individual users face costs in getting their works back up even as it becomes easier for copyright owners to assert and ask for take downs.

Today, there has been some fight-back:

Prof. Lawrence Lessig has settled his lawsuit against an Australian record label over the use of clips of a popular song by the band Phoenix in a lecture that was later posted online. Liberation Music, which represents Phoenix in New Zealand, claimed the clips infringed copyright, demanded YouTube take down the lecture, and then threatened to sue Lessig. Represented by the Electronic Frontier Foundation (EFF) and Jones Day, Lessig fought back, asserting his fair use rights in court.

“Too often, copyright is used as an excuse to silence legitimate speech,” said Lessig, who serves as the Roy L. Furman Professor of Law and Leadership at Harvard Law School and director of the Edmond J. Safra Center for Ethics at Harvard University. “I’ve been fighting against that kind of abuse for many years, and I knew I had to stand up for fair use here as well. Hopefully this lawsuit and this settlement will send a message to copyright owners to adopt fair takedown practices—or face the consequences.”

The settlement requires Liberation Music to pay Lessig for the harm it caused. The amount is confidential under the terms of the settlement, but it will be dedicated to supporting EFF’s work on open access, a cause of special importance to Lessig’s friend, Aaron Swartz, a technologist and activist who took his own life in early 2013. The parties also worked together to improve Liberation Music’s methodology for compliance with the requirements of the DMCA in the United States. Going forward, Liberation Music will adopt new policies that respect fair use.

While not a decision, Lessig was paid. Basically, what this means is that it is no longer a ‘free option’ for a copyright owner to request a take-down at YouTube. If it is done for a work that is clearly covered by fair use, then the copyright owner may have to pay damages to the creator whose work has been taken down. One suspects that this will also get Google’s notice as well and force a less automatic approach; maybe with an easier right of reply to take-down notices.

Of course, because Lessig wasn’t just or at all interested in the money, there is more:

A co-founder of the nonprofit Creative Commons and author of numerous books on law and technology, Lessig has played a pivotal role in shaping the debate about copyright in the digital age. In June 2010, Lessig delivered a lecture titled “Open” at a Creative Commons conference in South Korea that included several short clips of amateur dance videos set to the song “Lisztomania” by the French band Phoenix. The lecture, which was later uploaded to YouTube, used the clips to highlight emerging styles of cultural communication on the Internet.

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.

Suffice it to say, one thing is clear: don’t mess with Lessig. He knows his stuff on this.