Lessig presentation silenced (again)

[David Farber <dave () farber net>]

Begin forwarded message:

From: Richard Forno <rforno () infowarrior org>
Date: March 2, 2010 12:55:03 PM EST
To: Undisclosed-recipients: <>;
Cc: Dave Farber <dave () farber net>
Subject: Lessig presentation silenced (again)

Bogus Copyright Claim Silences Yet Another Larry Lessig YouTube Presentation
from the not-this-again... dept
http://techdirt.com/articles/20100302/0354498358.shtml

Nearly a year ago, we wrote about how a YouTube presentation done by well known law professor (and strong believer in 
fair use and fixing copyright law), Larry Lessig, had been taken down, because his video, in explaining copyright and 
fair use and other such things, used a snippet of a Warner Music song to demonstrate a point. There could be no clearer 
example of fair use -- but the video was still taken down. There was some dispute at the time as to whether or not this 
was an actual DMCA takedown, or merely YouTube's audio/video fingerprinting technology (which the entertainment 
industry insists can understand fair use and not block it). But, in the end, does it really make a difference? A 
takedown over copyright is a takedown over copyright.

Amazingly enough, it appears that almost the exact same thing has happened again. A video of one of Lessig's 
presentations, that he just posted -- a "chat" he had done for the OpenVideoAlliance a week or so ago, about open 
culture and fair use, has received notice that it has been silenced. It hasn't been taken down entirely -- but the 
entire audio track from the 42 minute video is completely gone. All of it. In the comments, some say there's a 
notification somewhere that the audio has been disabled because of "an audio track that has not been authorized by WMG" 
(Warner Music Group) -- which would be the same company whose copyright caused the issue a year ago -- but I haven't 
seen or heard that particular message anywhere.

However, Lessig is now required to fill out a counternotice challenging the takedown -- while silencing his video in 
the meantime:

While you can still see the video on YouTube, without the audio, it's pretty much worthless. Thankfully, the actual 
video is available elsewhere, where you can both hear and see it. But, really, the fact that Lessig has had two 
separate videos -- both of which clearly are fair use -- neutered due to bogus copyright infringement risks suggests a 
serious problem. I'm guessing that, once again, this video was likely caught by the fingerprinting, rather than a 
direct claim by Warner Music. In fact, the issue may be the identical one, as I believe the problem last year was the 
muppets theme, which very, very briefly appears in this video (again) as an example of fair use in action. But it was 
Warner Music and others like it that demanded Google put such a fingerprinting tool in place (and such companies are 
still talking about requiring such tools under the law). And yet, this seems to show just how problematic such rules 
are.

Even worse, this highlights just how amazingly problematic things get when you put secondary liability on companies 
like Google. Under such a regime, Google would of course disable such a video, to avoid its own liability. The idea 
that Google can easily tell what is infringing and what is not is proven ridiculous when something like this is pulled 
off-line (or just silenced). When a video about fair use itself is pulled down for a bogus copyright infringement, it 
proves the point. The unintended consequences of asking tool providers to judge what is and what is not copyright 
infringement lead to tremendous problems with companies shooting first and asking questions later. They are silencing 
speech, on the threat that it might infringe on copyright.

This is backwards.

We live in a country that is supposed to cherish free speech, not stifle it in case it harms the business model of a 
company. We live in a country that is supposed to encourage the free expression of ideas -- not lock it up and take it 
down because one company doesn't know how to adapt its business model. We should never be silencing videos because they 
might infringe on copyright.

Situations like this demonstrate the dangerous unintended consequences of secondary liability. At least with Lessig, 
you have someone who knows what happened, and knows how to file a counternotice -- though, who knows how long it will 
take for this situation to be corrected. But for many, many, many other people, they are simply silenced. Silenced 
because of industry efforts to turn copyright law into something it was never intended to be: a tool to silence the 
wider audience in favor of a few large companies.

The system is broken. When even the calls to fix the system are silenced by copyright claims, isn't it time that we 
fixed the system?                 



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