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The Courts Music

Lawrence Lessig Wins Fair Use Case 89

Posted by samzenpus
from the play-it-again-lawrence dept.
just_another_sean writes "An Australian record label that threatened to sue one of the world's most famous copyright attorneys for infringement has reached a settlement with him. The settlement includes an admission that Lawrence Lessig, a Harvard Law School professor, had the right to use a song by the band Phoenix. From the article: 'In a statement, Liberation Music admitted Lessig's use of the song was protected by fair use — a legal doctrine that allows copyrighted material to be used for education, satire and a few other exceptions. Liberation Music says it will also pay Lessig for the harm it caused. The amount is confidential under the terms of the agreement, but it will be dedicated to supporting work by the Electronic Frontier Foundation, a digital civil rights group, to work on causes that were important to Lessig's friend Aaron Swartz, a technologist and activist who committed suicide last year.'"
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Lawrence Lessig Wins Fair Use Case

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  • Haven't rtfa yet, but my cynical side tells me that the settlement might be limited to Mr. Lessig and that Auzzie recording company.

    MAAFIA won't sit still if the settlement is open to all - meaning, fair use for all to use songs / compilation from all record companies.

    • by jargonburn (1950578) on Friday February 28, 2014 @04:25AM (#46365853)
      Settlements do not set a precedent. Or not of the legal variety, so far as I understand it. But actually having them agree to *admit* that his use qualified as Fair Use is pretty significant. Usually civil settlements avoid admitting anything about the validity of whatever claim was settled. Such an admission could serve as a basis for additional pressure on them from others who use music in any related circumstance. Of course, I'm not a lawyer and assert that anything I say on the matter is merely half-assed guessing based on what little common sense I've accrued over the years.
      • by Joce640k (829181) on Friday February 28, 2014 @04:34AM (#46365875) Homepage

        Settlements do not set a precedent.

        Which is why the corporations prefer them to losing in court.

      • by Anonymous Coward
        On the contrary, they set a precedent for more settlements. Because free money is hard to overlook. Where does the line start?
      • by tunabomber (259585) on Friday February 28, 2014 @10:13AM (#46366989) Homepage

        As others have mentioned, there is no need for precedent because once the plaintiff actually started reading the laws, there wasn't much legal ambiguity- Liberation Music was wrong and Lessig was right. I think he got the upper hand here. From TFA:

        In winning this tussle, Lessig was also able to score a larger victory for his cause. Liberation Music agreed to adopt new policies around issuing takedown notices. The label has promised to work with Lessig to improve its YouTube and copyright policies to make sure this doesn't happen again.

        Being in the right is never enough to avoid being sued or legally threatened, but at least this settlement is an attempt to fix that problem in the context of YouTube. Oh- and all the settlement cash is going to the EFF.

        • by gstoddart (321705)

          As others have mentioned, there is no need for precedent because once the plaintiff actually started reading the laws, there wasn't much legal ambiguity

          Except in general we do need the precedent to remind the litigious bastards that there exist perfectly valid cases of fair-use, and if you start making claims which ignore that, there are consequences.

          So often people use this as a bullying tactic, and then settle before a court can rule.

          We need more court rulings which reaffirm this, and serve to remind comp

          • by Anonymous Coward

            The precedent, if you wish to find one here, is that it has been admitted in court that the accusation was both unfounded and based on a complete lack of comprehension of the rights in "copyright" by "copyright owners".

            If any copyright notice is made against you, you can point to this and say "How do I know you're claiming rights you have when these people got it so clearly wrong?".

            You don't need precedent, however, because the law clearly and unambiguously says what the precedent would have said.

          • Precedents are about setting new standards or interpretations of existing laws. Lenz v Universal, Capitol v Foster are precedents. Lessig clearly used the music legally as set by previous precedents of Fair Use. I think that you would rather that someone should make an example of Liberation Music for which I agree.
      • by X0563511 (793323)

        based on ... common sense

        And that is why you're probably wrong - law and common sense are not bedfellows.

      • Yes, fair-use is set up so it has to be litigated by expensive and/or experienced lawyers [of which Lessig is one], every time, because it's only valid for the very specific circumstances of that particular case, at least in the US.

        If this was Joe Blow, he would have to accept defeat just because he couldn't afford the 5 or 6 figure lawyer fee's which don't get awarded even if he wins unless the other side does something extremely egregious.

    • by sumdumass (711423)

      fair use is typically only a defense against copyright infringement. This means that an infringement claim sort of needs to be recognized before fair use is useful. In an ideal world, the copyright owner would recognize the limitations for fair use and not bother going after someone who is taking advantage of the exceptions. But that would require some rational thinking which doesn't seem to exist very often when you find out someone has been using your copyright without your permission.

      • No, Fair Use is, by definition, not an infringement. That's what copyright holders like the MPAA and RIAA fail to understand. Any use without permission is not always an infringement; there are clearly established and codified exceptions.
        • by sumdumass (711423)

          No, fair use is not an infringement by law, not definition. but the law does not in any way say you can explicitly do X and it is not infringement, it says for certain purposes, you can do X but you need to determine several things first. The law actually specifically says "In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include" [cornell.edu]

          The only way to determine that is for someone to assert it as a defense against infringement. Even then it is n

          • No, fair use is not an infringement by law, not definition.

            Um what? USC clears says "the fair use of a copyrighted work . . . is not an infringement of copyright."

            but the law does not in any way say you can explicitly do X and it is not infringement, it says for certain purposes, you can do X but you need to determine several things first.

            No, the statute spells out conditions to be met before a use is considered fair use; however, once it is considered fair use it is also declared as not an infringement.

            The only way to determine that is for someone to assert it as a defense against infringement.

            Or a lawyer reading USC 107 before filing a lawsuit against a defendant. If copyright holder needs a judge to intervene then they have to pay for a lawsuit.

            but a school using the same to explain fair use would be able to.

            Please explain how a school has fewer rights than an individual or news outlet whe

            • by sumdumass (711423)

              Um what? USC clears says "the fair use of a copyrighted work . . . is not an infringement of copyright."

              What does it say fair use is though? It is not something you just make up, it is a legal definition that employs concepts to be determined by an arbitrator on the subject for each specific case. It is a law limiting rights of copyright holders, not a definition.

              No, the statute spells out conditions to be met before a use is considered fair use; however, once it is considered fair use it is also declared

              • What does it say fair use is though?

                There are precedents, rulings, and of course, common sense. People hire lawyers whose job is to understand what legal definitions mean and how to apply them. There are many precedents that exist a lawyer can help determine if it is Fair Use.

                It is not something you just make up, it is a legal definition that employs concepts to be determined by an arbitrator on the subject for each specific case. It is a law limiting rights of copyright holders, not a definition.

                First of all your concept of copyright is flawed at the structural level. Congress wrote copyright laws to grant limited protection to works. Fair Use is one of the limitations as codified by USC 107. Fair Use is a legal concept; it does not exist in the vernacular

    • by Sique (173459)
      The RIAA has nothing to do with this case, as this was Liberation Records, an australian label, which is not a member [wikipedia.org] of the RIAA.
      • by DeSigna (522207) on Friday February 28, 2014 @05:34AM (#46366019)

        Australian labels are generally allied under the ARIA organisation, which has cordial relations with the RIAA. They're closely aligned in intent.

        The other interesting thing is, Australian copyright law is much stricter about "fair dealing" (our version of the US' "Fair Use" clause), with exemptions only for very specific use cases. For instance, transcoding a CD to MP3 is not legal in AU. Nor would be using a jingle in a powerpoint for a highschool project, unless the jingle itself was the object of study. ARIA has said they will not sue for personal use such as this, which was taken as justification for not building in additional consumer protections and fair deal exclusions during the most recent revision of AU copyright law.

        It's fortunate that this issue occurred and the case was tried in US jurisdiction.

        • by Anonymous Coward on Friday February 28, 2014 @05:52AM (#46366069)

          For instance, transcoding a CD to MP3 is not legal in AU.
          Yes it is - format shifting was specifically permitted in the amendments made in 2006 [wikipedia.org], except where DRM or other technological protection measures are in place. Ripping a CD is ok, ripping a DVD is not ok.

          • by Anonymous Coward

            How can a technological measure (drm) affect one's legal rights?

            • by Anonymous Coward

              by law.

            • by suutar (1860506) on Friday February 28, 2014 @10:56AM (#46367377)
              Oh, you wouldn't get busted for the format shift. You'd get busted for circumventing the DRM, which is itself illegal. Note that the permission to format shift is not described as a 'right', either in the post you're responding to or in the linked article section; it is described as an exception to existing law. Similarly, "fair use" is not described as a right in US law; it is an affirmative defense. You have to show that what you're doing is fair use, and if you succeed they get no damages. And similarly, you still can't circumvent the DRM to do so.
        • For instance, transcoding a CD to MP3 is not legal in AU.

          It's not legal in the US either. The AHRA which allows single copies of digital media to be made requires the implementation of serial copy management [wikipedia.org] to enforce that rule. The no copy flags on CDs are ignored by computer burning software and MP3 has no support for copy restrictions so transcoding without permission is a copyright violation. Only Canada is permissive enough to allow unfettered copying on the pretext that a "license" is paid for through the writable media levy.

    • If you read the article: "Liberation Music agreed to adopt new policies around issuing takedown notices. The label has promised to work with Lessig to improve its YouTube and copyright policies to make sure this doesn't happen again."

      So the settlement goes beyond Lessig and seeks to correct the overzealous behavior of that company.
  • ... as full lossless tracks for their fans to remix anyway?

  • by EzInKy (115248) on Friday February 28, 2014 @04:51AM (#46365921)

    I congratulate Mr. Lessig on his victory. This current trend of copyright possessors to lock up humanity's legacy for decades or more has to be stopped. In essence they are given to legal ability to restrict what a person can hear and see for up to a century or more. That is an awesome power that they don't seem to have the ability to weild wisely.

  • by Anonymous Coward

    It's nice that Lessig won this battle, but I think the problem is that pretty much anyone else wouldn't have. People lose on youtube every day where companies and individuals use the report tool as a "I don't like what you said" tool, without any downside. Either you win you claim, or you don't and get to try again and again and ...

    • According to this [npr.org], Lessig was talking about a remix in one of this lectures, a music matcher downloaded his lecture, found it to contain the song 'owned' by this label, and the label sent out an automated harassment lawsuit threat to Larry.

      So, he counter-sued. It's not clear if he got any concessions from the label about using automatic scanners directly (as the article said was one of his goals), or if just having somebody finally fight back is the signal to them to back down. One can imagine a group of

      • by Jahta (1141213) on Friday February 28, 2014 @07:08AM (#46366291)

        According to this [npr.org], Lessig was talking about a remix in one of this lectures, a music matcher downloaded his lecture, found it to contain the song 'owned' by this label, and the label sent out an automated harassment lawsuit threat to Larry.

        You have to wonder, at what point did they realise they were taking a copyright case against one of the world's most famous legal authorities on copyright!

        • by Anonymous Coward on Friday February 28, 2014 @09:04AM (#46366613)

          'You have to wonder, at what point did they realise they were taking a copyright case against one of the world's most famous legal authorities on copyright!'

          After it was waaay too late.

          I suspect Mr. Lessig has gone fishing.
                First choosing a type of fish. (A copyright holder known to use indiscriminate tactics on YouTube.)
                Choose a location to fish. (AU, not sure why here, but I bet there's a reason.)
                Choose a bait. (His educational video with a bit of their song for their bots to find.)
                Wait for a bite (Their takedown notice to him)
                Set the hook so they couldn't get away. (His counter action.)
                    (They likely figured it out about here.)
                Have his way with them. (The settlement requiring them to mend their ways.)

          Even if you are the fish, you have to admire his style.

          • by rjune (123157)

            This was an excellent post. I don't know if it is the correct scenario, but is very plausible in view of the facts. I also enjoyed reading about an organization that having its own weapon (copyright law) turned against it. You should have posted this under your user name if you have one. If you don't go ahead and register because I think your posts would be above average and would add to the comments.

          • I don't subscribe to any conspiracy theory that Lessig baited a copyright holder. Rather, he was doing what was well within what the law allows. A copyright holder not knowing or caring what the law is threatened to sue him. Perhaps they didn't realize who Lessig was or that he actually knew the law better than they did or they hoped they could intimidate him.
            • by doom (14564)

              I don't subscribe to any conspiracy theory that Lessig baited a copyright holder.

              It's hardly a "conspiracy theory", have you ever seen Lessig in action? The last time I saw him speak, he used a gratuitous clip from "Casablanca" to make a point.

              Are you going to tell me that he wasn't waving a red cape in front of the MPAA's nose?

              • He's allowed to use Casablanca as long as it falls under Fair Use provisions which has already been codified. That's like complaining it's a conspiracy theory that Lessig is baiting the RIAA when he goes around showing people the music on his iPod. The courts have already recognized format shifting as a legal fair use.
  • I wouldn't have commenced the proceedings against Lawrence Lessig in the first place.

    Unfortunately, a settlement is not a 'win' as wrongly implied by the /.-title. So there's no way going to cite it as case law.
    Still, it is a step into the correct direction, and my kudos to LL; one of my heroes for the last decade!

    • by suutar (1860506)
      apparently the 'win' is that the label in question, as part of the settlement, has to agree to improve their processes. Not as good as a legal precedent, but a lot cheaper.
  • by Kartu (1490911) on Friday February 28, 2014 @05:53AM (#46366077)

    Shouldn't he had won the actual court battle, to set a precedent?

    • by Threni (635302)

      Exactly - secret settlements = not a clear win and he was partly wrong. Hopefully there'll be some clarification here, otherwise what has it proved?

      • For the rest of us it has proved absolutely nothing. For the record label it proves that you should figure out who you are suing and whether you have a case before you do it. Did it not occur to them that perhaps "one of the world's most famous copyright attorneys" might know a few things about what he can and cannot do? For that matter even if they thought they had a strong case I'd be leery of suing a guy like that over something in his area of expertise. If for no other reason than it probably means he c

    • by AmiMoJo (196126) *

      There is no need for a precedent, the law is quite clear. It's just unfortunate that you have to sue to enforce it.

    • by khallow (566160)
      Yes, it is a victory since someone had to pay money.
    • Also setting a precedent would have to be about something new in the case that was not previously in law books. There's nothing new about Fair Use exemptions to copyright. Even if it went to a court and Lessig won, all it would signify is that Liberation Music needs better lawyers or legal sense.
    • A different article on this story (think it was techdirt [techdirt.com]) describes the situation:

      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.

      That is "you won, what the heck are you still doing in my courtroom?"

  • by Anonymous Coward

    Sueing Lawrence Lessig for copyright infringement is a bit like picking a fight with Chuck Norris.

  • I'm pretty sure by now they've figured out that Lessig was the wrong guy to screw with.

    I can only imagine those Australian lawyers hollering at their interns, "You mean you knew who this guy was and you let us go after him without saying anything?"

    • by davecb (6526)
      I suspect he was hollering at the program that did the takedown notice without human involvement (;-))
      • I suspect that before the threatening letter goes out, there's is some human employed that could possibly take the blame.
        • by davecb (6526)
          My understanding is that is not the case, at least in the U.S., in part because the number of reported false assertions is huge. To be fair, of course, the programmer is a human, and responsible (:-))
        • by suutar (1860506)
          In the US, there is no blame. The program noticed something; that's enough for the company to claim a good faith belief, at which point they're off the hook beyond (maybe) legal costs. And until a judge decides that the program's crappy enough that they should know better than to believe it, they have no motivation to improve it.
    • by SpzToid (869795) on Friday February 28, 2014 @09:12AM (#46366635)

      There are two ways to learn anything.

      One way is if you are fortunate to learn from Someone Who Knows Already and is patient and gracious enough to try to explain and share with you what they have already learned. Or perhaps you can learn from simply observing and paying attention of those Wise Folks Who Have Already Learned. (Or you could apply science, but let's not digress)

      The other way to learn stuff which works really very well, perhaps even better than the first method, especially if forgetfulness is a variable we should also take into consideration is the method I like to call, 'pain and suffering', is somewhat self-explanatory, and really works well also.

      And by all means try to go with the first option if at all available to you when you try to learn stuff, because it is most-preferable for sure. This much I have learned for myself the hard way too many times.

      • by PopeRatzo (965947)

        This much I have learned for myself the hard way too many times.

        And the harder the lesson, the less likely you are to forget it.

      • by SpzToid (869795)

        Like, right now, for too long already, I have been trying to figure out how to make something work. And when/if I am successful I have a carrot to look forward to maybe possibly, and otherwise a stick which is a known fact and I hope to turn around, eventually. I hate the stick so much and I never get a carrot, for reals.

        But there is no one that can teach me at least given my resources, although no doubt Other People know. My boss cast me aside to search for those other fish (arrogant privileged fool he is.

  • Settlements (Score:3, Informative)

    by Anonymous Coward on Friday February 28, 2014 @09:29AM (#46366725)

    Quote: "Settlements do not set a precedent. Or not of the legal variety, so far as I understand it. "
    That's right. In a U.S. district court decision can be used by another judge but they aren't binding. The judge can ignore it, claim it's irrelevant for some reason, or disagree with it. District court judges are equal. One can't boss another, even in the same district.
    The decision of an appeals court, however, is binding on all judges in that district. District court decisions must follow it, although an aggressive judge can find a reason it doesn't apply to the specifics of his case. Appeals courts are higher and can dictate to their district's judges.
    At times, appeals courts in different districts will interpret the law differently. Since there's only one federal legal system, it can't tolerate significant differences in the law between districts. It's embarrassing and messy when something that legal in the Ninth Circuit is illegal in the Second. As a result, a case in which the two conflict will need to be fast-tracked for the U.S. Supreme Court, since only it can decide.
    While having all these ambiguities can make life messy for everyone involved, it does give our courts the opportunity to disagree long enough for a situation to sort itself out and most of the complications of deciding one way or the other revealed. When there's a conflict in how courts are interpreting the law, Congress can also alter it to settle the dispute one way or the other.

  • What kind of idiot sues Lawrence Lessig for copyright violation? How did they possibly expect to win? Presumably the same kind of idiot that tries to kidnap Liam Neeson's daughter, or hijack the plane he is on.

    Perhaps the lawyer for Liberation Music (also, their name... ha!) knew he had no chance in hell and simply did not care. He gets paid either way.

    • by Anonymous Coward

      What kind of idiot sues Lawrence Lessig for copyright violation?

      It's like suing Jesus Christ for blasphemy. Come to think of it, Jesus Christ was sued for blasphemy and got the death penalty for it.

      So why not sue Lawrence Lessig for copyright violation?

  • ...suing a Harvard Law professor....

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