
Not Smart: Warner Music Issues DMCA Takedown On Larry Lessig Presentation - jasonlbaptiste
http://www.techdirt.com/articles/20090428/1738424686.shtml
======
sketerpot
The video in question:

<http://blip.tv/file/1937322>

And yes, Lessig is going to fight this.

------
nfriedly
According to one of the comments from slashdot, Lessig goes beyond fair use in
his presentation:

\----------------------------

He uses a 50 second clip of The Muppet Show's "Ma Na Ma Na" [1] which is a
very short skit track of about 2:29 minutes. He shows it being set to an Anime
Music video mash up of Vampire Hunter D Blood Lust. I can't seem to track down
who would be the rights holder of this track but I'm guessing it's Warner. I
have only seen 15 minutes of his presentation so it's possible there are other
violations.

Larry: Non-free Audio Fair Use for music constitutes 10% or 30 seconds of a
song (which ever is shorter) and it must be in a low enough quality (didn't
investigate the audio on this video to find out if it satisfied Ogg quality of
0 rule). For the rest of the 15 minutes I saw you looked fine but this stuck
out at me. Pick your battles wisely and adhere to this rule next time.

\--------------------------

Source:
[http://slashdot.org/comments.pl?sid=1216733&cid=27765265](http://slashdot.org/comments.pl?sid=1216733&cid=27765265)

[1]
[http://www.youtube.com/watch?v=7lgcQUQZBtE&feature=relat...](http://www.youtube.com/watch?v=7lgcQUQZBtE&feature=related)

~~~
dreish
This is a load of nonsense, of course. Wikipedia's guidelines for fair use
within Wikipedia (which is what the above quotes, unattributed) are _not_
based on any specific legal doctrine about what exactly is fair use.

Suggesting that Lessig violated copyright law because he didn't follow
Wikipedia's guidelines is absurd. Here are the criteria that would be tested
in court. They are not numeric, they are matters of judgment:

<http://www.copyright.gov/fls/fl102.html>

~~~
chris11
Yeah, I'm not at all convinced that it is infringing.

1\. It can definitely be argued that it is for an educational use, and I can't
think of any valid argument that it is for a commercial purpose.

2\. It's a user created music video, so he has a case here.

3\. Warner might have a good argument here. Lessig did use about 50s of the
song.

4\. I really don't see Lessig's presentation as having a useful replacement
for the song.

Lessig starts playing a lot of copyrighted material around 9 minutes into the
presentation to illustrate remixes.The Muppets song is played at about the
11.00 min mark. The presentation is about 50 minutes long, so I really doubt
that his purpose was to violate copyright law or to even play a specific song.

------
mattmaroon
Once again, everyone in the tech industry assumes everyone not in the tech
industry is stupid. That seems like exactly who I'd want to issue a takedown
notice to if I were Warner (assuming I had a reasonably compelling case, which
I make no judgment on here since I'm not an IP attorney, and I'm guessing
neither is the author).

~~~
tsally
Why would you want to issue a take down notice to one of the most well known
IP lawyers out there? Big business thrives on settlements, not landmark court
cases. How do you think big media got away with suing individuals for
torrenting for so long? They forced settlements before an actual decision
could be made. Hell, they even dropped cases they thought they were losing,
not wanting to risk the impact of an unfavorable decision. Lessig wont settle,
and that's why issuing a takedown notice to him is bad for Warner. Lessig will
try to take the whole thing to the Supreme Court if he has to.

~~~
mattmaroon
Why would you not want to issue a take down notice to one of the most well-
known IP lawyers out there? Warner isn't doing it to directly profit off of
the case, just as they weren't with torrentors. The pittance they got from
those settlements was irrelevant. Their goal is deterrent.

I'd bet anything that one of two things are the case. 1, this is some sort of
mishap, carried out by an automated program that scans for IP, or some low
level employee hired to issue DMCA notices (or the latter in conjunction with
the former.) Or 2, the industry has a list of high profile enemies who they've
just been waiting for to screw up, and they finally caught the biggest of them
doing something their legal minds think has a reasonable shot of being proven
a violation of fair use in court.

If it's the latter, I'd do it too if I were them.

~~~
jerf
For a copyright precedent, this strikes me as a terrible, terrible case for
them. dreish is correct about the nature of Fair Use, and furher remember that
underlying those court-generated criteria for Fair Use lies the fact that Free
Speech actually trumps copyright law; the First Amendment is an amendment,
whereas the Constitutional provision for copyright is in the Constitution
proper, not an amendment. They've been harmonized, at least in theory (so no,
you don't get to just claim Free Speech destroys copyright entirely), but if
there is a conflict, the 1st wins.

And this is political free speech, debating how the law works. This is
"copyright infringement"/Fair Use at the highest standard of education and
political debate, where the courts should most fear to tread. Obviously he
could take it too far, but given the fuzziness of Fair Use and how it tends to
be ruled this is nowhere near egregious violation.

I favor the automated failure theory. If they were out to make a point I'm
sure they could find something more clear, and a target less well defended
(and funded) than a famous law professor. There's little upside for them here
(even if they win, they only create a martyr) and some downside.

~~~
jerf
The problem with mattmaroon citing this message as an example of... whatever
it is he's accusing me of... is that I actually _have_ studied this topic,
from primary sources, and been learning about it for years now. Perhaps he
doesn't know enough about the topic to recognize that.

He misinterprets my first line as claiming this is setting a precedent. No,
I'm talking about how they would want this to _turn into something_ that sets
this up as a precedent, because simply a random fight is pointless expense.

Secondly... unless you can bring a lawyer in to disprove my points, I, like I
said, have actually been studying this stuff for a while and am reasonably
confident on this point. This is, Constitutionally, a bad case for Warner, and
_precisely because I don't think they are stupid_ , give them the benefit of
the doubt and assume this was an at-least semi-automated process gone wrong.
_That_ certainly happens often enough, after all.

Other explanations exist; simple intimidation, some "larger" plan, the belief
they can ram it through with enough money, an order from a non-lawyer on top
going against lawyerly advice.

Frankly, assuming that companies _always_ act rationally, even given the
information available from their point of view, is naive and not supported by
the facts, a point I've seen from the inside of plenty of tech and non-tech
companies. Going off on people for failing to assume this is not justified.

