Creative Commons vs YouTube Takedown - The UpStream

As more people upload videos to the Internet, more content owners issue takedown notices, both legitimately and not. We here at PLuGHiTz Live have received a takedown on YouTube for an International CES interview we conducted about audio cables that had music playing in the background. Because the music was recognized by the automated system, our audio was muted, certainly making an interview less than useful.

We are not the only ones to receive this treatment from YouTube. Larry Lessig, one of the founders of the digital-age copyright movement, was speaking at a Creative Commons event, and part of his lecture included a clip from Lisztomania from French band Phoenix. Liberation Music, the owners of the licensing for the song, have asked YouTube to remove the video.

Lessig and the Electronic Frontier Foundation have sued Liberation in an attempt to prevent the takedown, claiming fair use. Since neither Lessig nor Creative Commons made any money from the presentation, nor the uploading to YouTube, the video does fall under the fair use doctrine, meaning the two have a good case.

The EFF and Lessig are going a step beyond reversing the takedown; instead they will be invoking a part of the DMCA in which a copyright owner must pay damages when they have gone too far in their takedown requests. The problem is the EFF is currently fighting a similar battle with the "dancing baby" video, which has been in action since 2007. That case has only now gotten to an appeals court and has not gone great thus far.

This case has some differences from the other, however. The fact that Liberation sued Lessig, whereas Universal backed off of Lenz when that video was pulled, could show an overly aggressive nature. Of course, the punctuation on this sentence is the fact that it is the Creative Commons organization, with a founder of modern copyright; it could be why the suit was filed and why it could lose.