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Lawrence Lessig Wins Fair Use Case

samzenpus posted about 10 months ago | from the play-it-again-lawrence dept.

The Courts 89

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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Is the settlement open for all ? (1)

Taco Cowboy (5327) | about 10 months ago | (#46365799)

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.

Re:Is the settlement open for all ? (5, Interesting)

jargonburn (1950578) | about 10 months ago | (#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.

Re:Is the settlement open for all ? (4, Insightful)

Joce640k (829181) | about 10 months ago | (#46365875)

Settlements do not set a precedent.

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

Re:Is the settlement open for all ? (0, Offtopic)

gIobaljustin (3526197) | about 10 months ago | (#46365943)

That might be the case, but it might also not be the case.

Re:Is the settlement open for all ? (0)

Anonymous Coward | about 10 months ago | (#46365947)

With current laws, I am affraid, what you say becomes irrelevant, as common sense is not something commonly used by politicians to create those laws in the first place.

Re:Is the settlement open for all ? (0)

Anonymous Coward | about 10 months ago | (#46367999)

I disagree. Politicians use common sense almost exclusively while creating laws.

First they figure out what the common sense solution to the problem would be. Then they make sure their laws do the exact opposite.

Re:Is the settlement open for all ? (1)

Anonymous Coward | about 10 months ago | (#46366463)

On the contrary, they set a precedent for more settlements. Because free money is hard to overlook. Where does the line start?

Re:Is the settlement open for all ? (5, Insightful)

tunabomber (259585) | about 10 months ago | (#46366989)

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.

Re:Is the settlement open for all ? (2)

gstoddart (321705) | about 10 months ago | (#46367639)

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 companies that they are under an obligation to understand the law before they make a claim.

No, you don't need precedent. (1)

Anonymous Coward | about 10 months ago | (#46367801)

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.

Re:Is the settlement open for all ? (1)

UnknowingFool (672806) | about 10 months ago | (#46368531)

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.

story says it all (0)

Anonymous Coward | about 10 months ago | (#46367121)

Lawrence Lessig, a Harvard Law School {professor}----- protected by fair use — a legal doctrine that allows copyrighted material to be used for ---{education}---, satire and a few other exceptions.

If he was anyone else the company would have gone thru with a lawsuit. The funny part of this to me, is the name 'Liberation Music' a little of an oxymoron, when your part of a monopolizing industry.

Re:Is the settlement open for all ? (1)

X0563511 (793323) | about 10 months ago | (#46367239)

based on ... common sense

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

Re:Is the settlement open for all ? (1)

davester666 (731373) | about 10 months ago | (#46369065)

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.

Re:Is the settlement open for all ? (1)

sumdumass (711423) | about 10 months ago | (#46365855)

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.

WRONG (0)

Anonymous Coward | about 10 months ago | (#46366241)

Copyright creates limited restricted rights and "fair use" or similar constructs are EXAMPLES OF those areas that copyright are not supposed to cover.

RUDE (1)

raymorris (2726007) | about 10 months ago | (#46366489)

wtf "WRONG". Rude.

Anyway yeah 17 U.S. Code 107 says fair use "is not infringement".

Just because you don't like the truth (-1)

Anonymous Coward | about 10 months ago | (#46366509)

Doesn't make pointing it out RUDE.

BS about how "fair use is a limitation on copyright" is TOTAL CRAP SPOUTED ALL THE TIME because it's damn well been parotted by those wanting aquiescence to their rights and non-participation for everyone else's.

Copyright doesn't cover all use of a copyrighted work, and doesn't cover all copying of a copyrighted work. It's a limited right, but the mantra is never about that, it's about it being an ABSOLUTE RIGHT where the "copyright owners" have "graciously let" people abridge their rights that people "keep trying to expand", when the fact of the matter is that it's the damn well other way round.

That's a fuckton load ruder than "WRONG!".

Re:Just because you don't like the truth (0)

Anonymous Coward | about 10 months ago | (#46366527)

You are replying to someone who agreed with the post, but said that the title is rude. Your assertion is that he found the post rude because he disagreed with it, which is a false premise in addition to the false conclusion.

Re:Just because you don't like the truth (-1)

Anonymous Coward | about 10 months ago | (#46366609)

Uh, the post did not say they agreed with the post.

They said it was RUDE and agreed with the post.

Lies by omission are still lies, retard.

Re:Just because you don't like the truth (1)

khallow (566160) | about 10 months ago | (#46367965)

No, they said it was rude (lower case) and agreed with the post. You're the one who appears to be hyperventilating with the CAPS LOCK key.

So what sort of lie is mischaracterizing someone's words twice? And don't you have anything better to do than bite ankles on Slashdot?

Re:Just because you don't like the truth (0)

Anonymous Coward | about 10 months ago | (#46367955)

Sorry? There was more than "I agree".

And my reply was to the bit that wasn't "I agree".

Feel better now?

Re:WRONG (1)

sumdumass (711423) | about 10 months ago | (#46368077)

I have no idea why you put wrong in the title. This is no different from what i said. Copyright law doesn't just say if X happens, it says if X happens you apply certain factors then fair use applies. So it is a defense against infringment not an automatic.

Re:Is the settlement open for all ? (1)

UnknowingFool (672806) | about 10 months ago | (#46368569)

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.

Re:Is the settlement open for all ? (1)

sumdumass (711423) | about 10 months ago | (#46374179)

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 not universal as a news broadcast might be able to assert fair use of a clip of a song or movie in its reporting of the sales of the song or movie where you who puts it on your web page claiming the song or movie sucks might not. Even worse, neither of you (you or the news) may be able to claim fair use, but a school using the same to explain fair use would be able to.

There is no defined specific use that is fair use. It is all a conglomeration of the facts that need to be asserted in defense of a claim. Stating something is fair use before a claim is made is still stating a defense against a claim- it's just attempting to head the claim off before it is made.

Re:Is the settlement open for all ? (1)

UnknowingFool (672806) | about 10 months ago | (#46377119)

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 when showing the same clip.

There is no defined specific use that is fair use. It is all a conglomeration of the facts that need to be asserted in defense of a claim. Stating something is fair use before a claim is made is still stating a defense against a claim- it's just attempting to head the claim off before it is made.

Really? So no one in this world has any common sense? So Lessig using a small clip of music, talking in an educational lecture about how music in different cultures is classic Fair Use. It doesn't take a super computer to figure this out.

My point again for which you didn't answer is this: The MPAA and the RIAA still have the stance that any use not authorized by them is an infringement. USC 107 clear codifies that Fair Use is authorized use (just not by the copyright holder but by law) and is not an infringement. If it takes a judge to say so for each and every case only if the MPAA and RIAA want to pursue each claim. But that does not change USC 107 or the legal interpretations of many previous cases like Lenz v Universal.

Re:Is the settlement open for all ? (1)

sumdumass (711423) | about 10 months ago | (#46378689)

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 as not an infringement.

No, it spells out elements that can be fair use but leaves discretion over it to someone with the power to decide matters like this (a judge or arbitrator).

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.

What do you think RIAA and the MPAA are doing? A copyright holder can still claim a copyright violation without filing a lawsuit. The accused infringe won't likely be pursued outside of having his reputation damaged or a DMCA take down filed, but there is no concrete statements in the law defining fair use. As I originally said, in an ideal world, the copyright holder (their agent) would recognized fair use when it exists but they don't seem to see it.

Please explain how a school has fewer rights than an individual or news outlet when showing the same clip.

Simple, you post the clip to a website saying the message is ruining our moral values, the news reports you doing so showing the clip also, but the school uses it in a production or assembly as filler to entertain the audience while the main production is getting organized. But if you look at the statement you quoted, I specifically mentioned that a school using the clip to teach about fair use would be covered so I'm not sure why you question this unless it is because you are seriously confused.

Really? So no one in this world has any common sense? So Lessig using a small clip of music, talking in an educational lecture about how music in different cultures is classic Fair Use. It doesn't take a super computer to figure this out.

ahh.. so young and naive. Copyright is a right granted by law not common sense. All to often in law, there is absolutely no common sense. Lessig didn't get into a dispute about using the clip of a song in his lesson, he got into the dispute because he posted and distributed that lesson online. Had he been charging a fee for the lessons, his claim to fair use may have very well went against him.

My point again for which you didn't answer is this: The MPAA and the RIAA still have the stance that any use not authorized by them is an infringement. USC 107 clear codifies that Fair Use is authorized use (just not by the copyright holder but by law) and is not an infringement. If it takes a judge to say so for each and every case only if the MPAA and RIAA want to pursue each claim. But that does not change USC 107 or the legal interpretations of many previous cases like Lenz v Universal.

Your point is wrong though. All lenz V Universal says is that before issuing a DMCA take down notice, the copyright holder must consider fair use. However, there is no set definition for fair use and by law is determined upon a preponderance of facts relating to the use. This means that a claim of fair use can be challenged and found not to exist based solely on the opinion of a judge and the copyright holder. There is no defined fair use in legal terms, only situations in which fair use can but doesn't need to exist. For this reason, fair use is a defense against infringement. If the law would have said all uses in non-profit displays or all uses by person X, then it would be cut and dry. As it is now, it is all a determination of opinion based around the facts pertained in the use and the law as written.

The law itself specifically refers to each particular case and describes factors to be used in determining if a use is fair use or not. ---In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall includeâ" [cornell.edu]

It then goes on to include a list of things that need to be determined and taken into account in it's entirety over the use of a work to determine if it is fair use or not. The law relies on the opinion of the person or persons determining if it is fair use. that means to be exempt from a copyright violation, either the copyright owner or its agents must consider it fair use or a judge or arbitrator must do so. In the case of the copyright owner, no claim of infringement would have been made. In the case of an arbitrator or judge, the claim would have been made.

Re:Is the settlement open for all ? (1)

UnknowingFool (672806) | about 9 months ago | (#46388525)

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. As such Congress has defined it loosely using USC 107 as part of 4 factor test. Other legal concepts are also loosely defined like "obscenity."

No, it spells out elements that can be fair use but leaves discretion over it to someone with the power to decide matters like this (a judge or arbitrator).

So no lawyer can look at precedents and make a judgement as to whether or not they have enough of a case to go to an arbiter and win? The copyright holder is free to sue anyone if they went even against advice of counsel.

What do you think RIAA and the MPAA are doing? A copyright holder can still claim a copyright violation without filing a lawsuit. The accused infringe won't likely be pursued outside of having his reputation damaged or a DMCA take down filed, but there is no concrete statements in the law defining fair use. As I originally said, in an ideal world, the copyright holder (their agent) would recognized fair use when it exists but they don't seem to see it.

Anyone can "claim" anything. SCO "claimed" that IBM stole their Unix and put it into Linux even though there was no infringement and they are not the owners of Unix. Part of the RIAA and MPAA strategy has been to threaten people to get quick settlements even if they are not legally correct. Unfortunately for them, people like Lessig fight back, and the copyright holder backed down. Lenz fought back and won in court.

ahh.. so young and naive. Copyright is a right granted by law not common sense. All to often in law, there is absolutely no common sense. Lessig didn't get into a dispute about using the clip of a song in his lesson, he got into the dispute because he posted and distributed that lesson online. Had he been charging a fee for the lessons, his claim to fair use may have very well went against him.

I don't know if you understand USC 107 as it clearly says "teaching" is an acceptable purpose. Non-commercial use is often Fair Use, but it does not say that all Fair Use must be non-commercial. Commercial use of a copyrighted work can be Fair Use. Otherwise, no news organization could ever review a book, movie, album and show part of the work.

Your point is wrong though. All lenz V Universal says is that before issuing a DMCA take down notice, the copyright holder must consider fair use. However, there is no set definition for fair use and by law is determined upon a preponderance of facts relating to the use.

From the court ruling [dmlp.org] :

Universal first argues that Lenz implicitly has admitted using Prince’s copyrighted musical composition without authorization, and thus that she infringed the copyright, through her “exclusive reliance on fair use in this litigation.” . . In response, Lenz maintains that the she has not admitted infringing the copyright by relying on a fair use theory because “[a]s this Court has noted, a fair use is not an infringement.” . . . Lenz is correct.

While Lenz says the copyright holders must consider Fair Use before a DMCA takedown, it also specifically countered Universal's contention that Fair Use is an infringement.

This means that a claim of fair use can be challenged and found not to exist based solely on the opinion of a judge and the copyright holder.

Again, if a copyright holder wants to pursue legal actions, it is on them. That does not change that there have been precedents set that would show that their reading of the law is incorrect.

There is no defined fair use in legal terms, only situations in which fair use can but doesn't need to exist. For this reason, fair use is a defense against infringement. If the law would have said all uses in non-profit displays or all uses by person X, then it would be cut and dry. As it is now, it is all a determination of opinion based around the facts pertained in the use and the law as written.

First, see time shifting (Betamax decision) and format shifting (RIAA v. Diamond Multimedia) are noted fair use precedents. Again, the copyright holder can sue and ignore precedents. Second, not all laws explicitly state every single case. That's what decisions and precedents are for.

Re:Is the settlement open for all ? (1)

Sique (173459) | about 10 months ago | (#46365859)

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.

Re:Is the settlement open for all ? (4, Interesting)

DeSigna (522207) | about 10 months ago | (#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.

Re:Is the settlement open for all ? (4, Informative)

Anonymous Coward | about 10 months ago | (#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.

Re: Is the settlement open for all ? (1)

Anonymous Coward | about 10 months ago | (#46366129)

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

Re: Is the settlement open for all ? (1)

Anonymous Coward | about 10 months ago | (#46366147)

by law.

Re: Is the settlement open for all ? (3, Informative)

suutar (1860506) | about 10 months ago | (#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.

You won't get busted for circumventing DRM in the (0)

Anonymous Coward | about 10 months ago | (#46367935)

DVD Jon http://en.wikipedia.org/wiki/Jon_Lech_Johansen was proscecuted for hacking in Norway for writing and distrubuting DeCSS. The MPAA lost big time. Since then Jon has moved to the U.S. and continued breaking DRM encryption schemes. Perhaps you have heard of VLC, which has to break encryption so you can watch a DVD or BlueRay.

The bottom line is although breaking DRM is the law, if it is enforced, odds are that it will be overturned under fair use. Why should I have to pay to decrypt a DVD the I own to simply watch it on my computer? What if I dual boot, do I legally watch the DVD on Windows, but break the law if I watch it using Linux?

IANAL, but I think that the MPAA and RIAA is afraid that enforcing DMCA for breaking DRM will result in the same fiasco that they had in Norway. (By the way, I am writing this on Mint, which is illegal because it plays DVD's immediately after installation - and nobody paid the MPAA)

Re: Is the settlement open for all ? (0)

Anonymous Coward | about 10 months ago | (#46366141)

I think you mean PPCA, not ARIA, and it's not so much as 'align', but allow PPCA to collect on the labels (and the Artists) directly on their behalf, their legal copyright entitlements from licensing the recorded works.

ARIA does (predominantly) charts only and doesn't do licensing...

Re:Is the settlement open for all ? (1)

wiredlogic (135348) | about 10 months ago | (#46367777)

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.

Re:Is the settlement open for all ? (1)

oh_my_080980980 (773867) | about 10 months ago | (#46367633)

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.

Didn't Pheonix release this album... (2)

Irick (1842362) | about 10 months ago | (#46365869)

... as full lossless tracks for their fans to remix anyway?

Re:Didn't Pheonix release this album... (0)

Anonymous Coward | about 10 months ago | (#46367493)

Well it was legal anyway so I doubt that would stop Liberty Music from false accusations

Any win is a positive! (3, Interesting)

EzInKy (115248) | about 10 months ago | (#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.

Re:Any win is a positive! (0)

Anonymous Coward | about 10 months ago | (#46368683)

Please note: Larry is NOT a copyright attorney, he is an anti-copyright lobbyist.

Re:Any win is a positive! (0)

Anonymous Coward | about 10 months ago | (#46369393)

A settlement is not legally a win.

The 1% of victims. (1)

Anonymous Coward | about 10 months ago | (#46365949)

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 ...

what happened here (1)

bill_mcgonigle (4333) | about 10 months ago | (#46365983)

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 people posting obviously protected content and waiting for their chance to file counter-suits, probably first against a bit player in the music label sphere (the ideal company to target for precedent is the least-well-off label that is using this scanning technology - being overseas is a bonus).

Note that this *isn't* about complaining though Google's no-help-desk.

Re:what happened here (4, Funny)

Jahta (1141213) | about 10 months ago | (#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!

Re:what happened here (5, Insightful)

Anonymous Coward | about 10 months ago | (#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.

Re:what happened here (0)

rjune (123157) | about 10 months ago | (#46366671)

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.

Re:what happened here (0)

Anonymous Coward | about 10 months ago | (#46367083)

Thank you! I now have a new business model. RIAA: Come at me, bros!

Re:what happened here (1)

UnknowingFool (672806) | about 10 months ago | (#46368797)

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.

Re:what happened here (1)

doom (14564) | about 10 months ago | (#46370007)

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?

Re:what happened here (1)

UnknowingFool (672806) | about 10 months ago | (#46370313)

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.

Re:what happened here (0)

Anonymous Coward | about 9 months ago | (#46394519)

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

I would tell you that, yes. It's much more likely that the MPAA is seeing red capes everywhere, even where none exists. I would say that empirical observation supports the hypothesis.

If I were them, (1)

udippel (562132) | about 10 months ago | (#46365977)

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!

Re:If I were them, (1)

suutar (1860506) | about 10 months ago | (#46367427)

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.

Is this really a victory though? (4, Insightful)

Kartu (1490911) | about 10 months ago | (#46366077)

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

Re:Is this really a victory though? (2)

Threni (635302) | about 10 months ago | (#46366269)

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

Re:Is this really a victory though? (2)

usuallylost (2468686) | about 10 months ago | (#46366753)

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 can keep you in court for the next 50 years for little to no expense on his part while it bleeds you dry. This isn't like threatening some teenager with no resources because he has your song playing in the background of his video.

Re:Is this really a victory though? (0)

Anonymous Coward | about 10 months ago | (#46367547)

Incidently having no money can be legally liberating as when you are threatened you say - go for it I have nothing you can take.
Of course I'm not sure the downsides to being flat broke are worth that silver lining though.
(not in the USA)

Re:Is this really a victory though? (2)

AmiMoJo (196126) | about 10 months ago | (#46366433)

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

Re:Is this really a victory though? (0)

Anonymous Coward | about 10 months ago | (#46366727)

In soviet russia... ah you get the point

Re:Is this really a victory though? (0)

Anonymous Coward | about 10 months ago | (#46367173)

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

He's making bank.

Or a bit simpler, SHOW ME THE MONEY!!!

http://www.youtube.com/watch?v... [youtube.com]

Re:Is this really a victory though? (2)

khallow (566160) | about 10 months ago | (#46367881)

Yes, it is a victory since someone had to pay money.

Re:Is this really a victory though? (1)

UnknowingFool (672806) | about 10 months ago | (#46368603)

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.

Re:Is this really a victory though? (1)

sabt-pestnu (967671) | about 10 months ago | (#46373011)

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?"

Losers pay for costs (-1)

Anonymous Coward | about 10 months ago | (#46366137)

Only in every other country - like the ones that have free healthcare. It helps prevent frivolous lawsuits if the greedy corporate malcontent is on the hook for the costs of harassing your ass. This of course isn't the case in the "land of the fucked, home of the whopper". America you (still) suck shit. Fuck you USA.

Aaron Swartz was an asshole, good riddance. (-1)

Anonymous Coward | about 10 months ago | (#46366247)

I had sympathy for him based on his situation, but then yesterday I read his blogposts.

Talk about liberal left-crazy.

Re:Aaron Swartz was an asshole, good riddance. (1, Insightful)

PopeRatzo (965947) | about 10 months ago | (#46366577)

Aaron Swartz was an asshole, good riddance.

General Clapper, is that you?

Re:Aaron Swartz was an asshole, good riddance. (0, Troll)

Anonymous Coward | about 10 months ago | (#46366807)

No, just someone who recognises the difference between a sane left-winger and an insane one. Aaron Scwartz was an insane one.

It explains his suicide far better - when a massively inflated ego who has vomited on the internet daily protected by a self-created echo chamber finally meets some opposition he cannot dismiss derisively, then it's very understandable that his world collapses.

I recommend anyone else reading his blogposts as well. It will give a quite different picture than the sympathetic one in the media.

Re:Aaron Swartz was an asshole, good riddance. (1)

PopeRatzo (965947) | about 10 months ago | (#46367161)

No, just someone who recognises the difference between a sane left-winger and an insane one.

Oh yeah. That's you alright.

Re:Aaron Swartz was an asshole, good riddance. (2)

DoofusOfDeath (636671) | about 10 months ago | (#46366897)

I had sympathy for him based on his situation, but then yesterday I read his blogposts.

Talk about liberal left-crazy.

I'm too am socially conservative, but I don't think we should desireothers' deaths just because of strong political differences.

Re:Aaron Swartz was an asshole, good riddance. (0)

Anonymous Coward | about 10 months ago | (#46367623)

Not having sympathy for him is not the same as desiring his death.

Chuck Norris (1)

Anonymous Coward | about 10 months ago | (#46366347)

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

Chuck Norris (0)

Anonymous Coward | about 9 months ago | (#46392193)

Worked out allright for Bruce Lee

Screw with the bull and you get the horns. (1)

PopeRatzo (965947) | about 10 months ago | (#46366503)

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?"

Re:Screw with the bull and you get the horns. (2)

davecb (6526) | about 10 months ago | (#46366629)

I suspect he was hollering at the program that did the takedown notice without human involvement (;-))

Re:Screw with the bull and you get the horns. (1)

king neckbeard (1801738) | about 10 months ago | (#46366925)

I suspect that before the threatening letter goes out, there's is some human employed that could possibly take the blame.

Re:Screw with the bull and you get the horns. (1)

davecb (6526) | about 10 months ago | (#46367087)

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 (:-))

Re:Screw with the bull and you get the horns. (1)

suutar (1860506) | about 10 months ago | (#46367467)

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.

Re:Screw with the bull and you get the horns. (3, Insightful)

SpzToid (869795) | about 10 months ago | (#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.

Re:Screw with the bull and you get the horns. (2)

PopeRatzo (965947) | about 10 months ago | (#46366789)

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.

Re:Screw with the bull and you get the horns. (0)

Anonymous Coward | about 10 months ago | (#46370615)

Very well written! Not specifically new or revolutionary, but well written. Thank you.

Re:Screw with the bull and you get the horns. (1)

SpzToid (869795) | about 9 months ago | (#46417795)

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. First-developer-turned project-manager btw; who obviously couldn't deliver the functional requirements himself), is that a stick or what?

If there is no first option, and you're motivated enough, then you might as well do what you can with option #2. How else will you learn anything?

Did I mention I am using open-source software? So if I ever get a carrot, at minimum, at least I gotta follow through with documentation for others to follow. Or there's that karma thing, maybe for reals too. Did you ever see the movie Groundhog's day?

Option #2 is really hard, and you can hope to avoid it all you want, but sometimes, it just smacks you in the face like a ton of bricks.

Settlements (3, Informative)

Anonymous Coward | about 10 months ago | (#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 are they? (1)

nitehawk214 (222219) | about 10 months ago | (#46367285)

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.

Re:What kind of idiot are they? (1)

Anonymous Coward | about 10 months ago | (#46367405)

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?

Re:What kind of idiot are they? (0)

Anonymous Coward | about 10 months ago | (#46376085)

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?

Jesus only served three days of his death sentence before it was suspended by a higher court, so that hardly serves as a model.

Real Smart.... (1)

oh_my_080980980 (773867) | about 10 months ago | (#46367643)

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

Re:Real Smart.... (0)

Anonymous Coward | about 10 months ago | (#46367849)

I guess Lawrence Lessig shouldn't have failed that student all those years ago...

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