Copyright & Fair Use

Abstract

Don't Mess With Lessig There have been a growing number of complaints about abuse of the procedure established by the Digital Millennium Copyright Act, whereby any copyright owner can demand that a website take material it alleges is infringing--or face huge fines. Organizations like the RIAA have automated this procedure with robots that scour the Internet for fingerprints of songs they want suppressed, then fire off notices to YouTube and others when the program finds them. Recently Google reportedly received its 100 millionth takedown notice this way (according to one report, it was its 235 millionth! (1)). Problem is, not all of these uses are infringing. Fair use makes it perfectly legal to use copyrighted works without permission in some circumstances, but rights holders routinely ignore this. YouTube will restore the material if a targeted user complains and proves the use was legitimate, but this puts the burden on the user. The RIAA can continue to fire off masses of sometimes dubious notices without any Until now. In 2013 Liberation Music, label for the rock band Phoenix, sent a takedown notice to YouTube demanding removal of a posted lecture by copyright reform advocate Lawrence Lessig, because it included a portion of the band's recording Lisztomania. Lessig immediately responded that use of the clip in a scholarly context was classic fair use and the lecture should be restored. Liberation Music then threatened to sue Lessig if he didn't withdraw his complaint. Lessig, who is a Harvard Law Professor, turned the tables and with the backing of the Electronic Frontier Foundation sued Liberation Music for its false takedown notice. In a victory for fair use, the label soon settled, admitted that Lessig was correct, and agreed to change its procedures and pay unspecified damages. Said Lessig, Too often copyright is used as an excuse to silence legitimate speech. 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 will send a message to copyright owners to adopt fair takedown practices--or face the consequences. As for Phoenix, they issued a statement supporting Lessig, then said We wipe our hands of this nonsense. Bringing pre-1972 recordings under federal copyright law, in order to establish a public domain for the oldest recordings, has been one of ARSC's priorities. Since we began lobbying the U.S. Copyright Office and the Library of Congress have endorsed this position. In the following section Copyright Committee member Bruce Epperson discusses some recent, and potentially precedent-setting, court cases involving pre-1972 recordings. Copyright & Fair Use Update Bruce Epperson Flo & Eddie, Inc. v. XM Radio, Inc., No. 1:13-cv-05784-CM (S.D.N.Y., filed 16 August 16 2013); Flo & Eddie, Inc. v. XM Radio, Inc., No. BC517032 (Cal. Sup. Ct., Los Angeles Co., filed 3 September 2013; since removed to federal district court for the central district of California, No. 2:13-cv-0569); Flo & Eddie, Inc. v. XM Radio, Inc., No. 1:13-cv-23182 (Moore) (S.D. Fla., filed 3 September 2013); Capitol Records, LLC, et.al. v. XM Radio, Inc., Case BC520981 (Cal. Sup. Ct., Los Angeles Co., filed 11 September 2013) Just about everybody vs. Sirius is how one blog headline summarized the blizzard of lawsuits filed in the fall of 2013 against the satellite subscription radio service XM. These four cases can be broken down into two groups. Three are class action lawsuits brought on behalf of Mark Volman and Howard Kaylan, acting through their music company, Flo & Eddie, Inc. Volman and Kaylan were the principals behind the pre-1972 musical group The Turtles. Two of these suits were filed in federal courts in New York and Florida; one was filed in California state court. In the second category is a single lawsuit filed by five record companies (Capitol, Sony, UMG, Warner and ABKCO) in California state court. …

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