Lessig Files Knotty Copyright Case

     BOSTON (CN) – In a head-twirling case, Harvard Law Professor Lawrence Lessig sued an Australian record company, accusing it of abusing copyright law by demanding that YouTube kill a video posting of Lessig’s keynote address at a Creative Commons conference – a demand to which YouTube acceded.
     Lessig sued Liberation Music Pty Ltd. in Federal Court. He seeks declaratory judgment and an injunction and damages for misrepresentation under the Digital Millennium Copyright Act.
     Lessig is a well-known specialist in copyright law and technology.
     The video in question is of a 49-minute lecture called “Open,” which Lessig delivered on June 4, 2010 in Seoul, South Korea. Creative Commons, sponsor of the conference is “a nonprofit organization devoted to expanding digital creativity, sharing, and innovation,” Lessig says in the lawsuit.
     It continues: “As a result of defendant’s assertion of infringement, YouTube disabled public access to the video. Further legal threats from the defendant forced Professor Lessig to continue to keep the video offline pending a ruling from this Court.”
     Defendant Liberation, based in Melbourne, “claims to be authorized to enforce the copyrights of an alternative rock band named Phoenix, which is based in Versailles, France,” Lessig says in the complaint.
     Lessig’s “Open” lecture included “several clips of amateur music videos in order to illustrate cultural developments in the age of the Internet,” the complaint states.
     It continues: “One set of clips was taken from videos created by amateurs around the world, each of which depicts groups of people dancing to the same song, ‘Lisztomania,’ by the band Phoenix.
     “The ‘Lisztomania’ copycat video phenomenon started when a YouTube user, called ‘avoidant consumer,’ posted on YouTube a video combining scenes from several movies, with the song ‘Lisztomania’ serving as the soundtrack to the video.
     “Inspired by avoidant consumer’s work, other YouTube users from around the world, located in places as disparate as Brooklyn and San Francisco as well as Latvia, Kenya, Brazil and Israel, created their own versions of the video, with real people ‘performing’ the roles of the actors in the original movies, and again with ‘Lisztomania’ as the soundtrack.
     “Professor Lessig included these clips in the ‘Open’ lecture to illustrate how young people are using videos and other tools to create and communicate via the Internet.
     “Professor Lessig refers to this kind of communication as the latest in a time-honored
     ‘call and response’ tradition of communication.”
     But Liberation, of course, claims the underlying soundtrack violates copyright.
     Lessig denies it. He calls it fair use, under the Copyright Act, and says his use of it was transformative.
     He claims it was also noncommercial, did no market harm, and did not interfere with Phoenix’s or Liberation’s rights to profit from the song, which was released on April 16, 2009.
     Lessig claims he also used the tune in a minimal way, using 10- to 47-second excerpts from the tune, which is more than 4 minutes long.
     Nonetheless, Lessig says, Liberation demanded that YouTube kill the video, and threatened to sue him. YouTube acceded and killed it from the Internet.
     “There is a real and actual controversy between Professor Lessig and defendant
     regarding whether Professor Lessig’s use in his ‘Open’ lecture of video clips using the song ‘Lisztomania,’ and his posting of a video of that lecture on YouTube, infringes a copyright that defendant lawfully owns or administers,” Lessig says in the lawsuit.
     “Defendant’s conduct has forced Professor Lessig to choose between sharing his work and views publicly and risking legal liability. The controversy between Professor Lessig and defendant is thus real and substantial and demands specific relief through a decree of a conclusive character.
     “Professor Lessig is entitled to declaratory judgment that his use in his ‘Open’ lecture of video clips that used ‘Lisztomania’ as a soundtrack is lawful under the fair use
     doctrine and does not infringe the defendant’s copyright.”
     Lessig is represented by Christopher Morrison with Jones Day.

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