- 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 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
Neither party concedes the claims or defenses of the other.
Liberation Music included this statement in the settlement agreement:
"Liberation Music is pleased to amicably resolve its dispute with
Professor Lessig. Liberation Music agrees that Professor Lessig's use of
the Phoenix song 'Lisztomania' was both fair use under US law and fair
dealing under Australian law. Liberation Music will amend its copyright
and YouTube policy to ensure that mistakes like this will not happen
again. Liberation Music is committed to a new copyright policy that
protects its valid copyright interests and respects fair use and
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.
"This is the policy Liberation Music should have had from the
beginning," EFF Intellectual Property Director Corynne McSherry said.
"Too many content owners are issuing takedowns and manipulating content
filters without respect for the rights of users. This fight may be over,
but the battle continues until every content owner embraces best
practices that protect fair use."
For more on this case:
About Prof. Lessig:
Lawrence Lessig is the Roy L. Furman Professor of Law and Leadership
at Harvard Law School, director of the Edmond J. Safra Center for Ethics
at Harvard University and founder of Rootstrikers, a network of
activists leading the fight against government corruption. He has
authored numerous books, including The USA is Lesterland, Republic,
Lost: How Money Corrupts Our Congress—and a Plan to Stop It, Code and
Other Laws of Cyberspace, Free Culture, and Remix.
Intellectual Property Director
Electronic Frontier Foundation