Lessig, EFF Take On Copyright Maximalists

There's a general, if unstated, practice that YouTube does not recognize fair use. Copyright holders employ bots that scan as much of the content as they can as fast as they can and if they perceive anything to be copyrightable they send automated takedown notices, including takedowns for their own material, and takedowns for US Government material that is by definition public.

YouTube has tried to correct some of the excesses; for example, modifying its own ContentID scanning software. But since most of the fights over these things happen out of sight and are settled out of court there's precious little caselaw to support the notion that you can use copyrighted materials in ways that accord with fair use principles - and post videos of that fair use without being stifled.

That may change soon as the EFF, with Lawrence Lessig as named plaintiff, are suing a copyright holder called Liberation Music. The story is pretty typical - Lessig used a sample of copyrighted material in a lecture and posted a video of that lecture. Some bot somewhere detected that sample and auto-generated a takedown notice. YouTube got that notice and Lessig's counter-notice. Then Liberation Music decided to take it up a notch (double down in today's parlance) by threatening to sue Lessig.

With what looks like a solid case in hand, Lessig and his counsel have filed suit in MA courts (PDF here) asking for declaratory judgment that the professor's lecture video is fair use, along with actual damages since Lessig's video is still blocked on YouTube.

This story will no doubt take some time to wend its way through, because Lessig and the EFF are out to make a point. Ultimately, though, the reach of any decision is only going to be a region-locked posting. Even though the lecture in question was delivered in South Korea, the petition for judgment rests on US law. Countries that do not recognize scholarly and other exceptions to copyright doctrine might still block the video. Even so, getting a good court case on the books would be a big help.

(I feel compelled to remind readers that the EFF is a non-profit organization and their work is made possible by people and organizations who donate. I do, and if you think this is worthwhile, you can check out their donation page yourself.)