Lessig dispute shows value of ‘fair use’ of copyrighted songs

THE RECORD company Liberation Music belatedly realized it chose the wrong adversary for a copyright dispute. Citing the need to protect a copyrighted song, the company had sought to suppress the work of Harvard law professor Lawrence Lessig, a leading theorist of openness on the Internet. Although the company apparently has withdrawn its challenge, Lessig is right to pursue a lawsuit to protect free expression for people with fewer academic and legal resources.

In 2010 Lessig posted to YouTube a lecture that included amateur videos using the song “Lisztomania,” by the band Phoenix, as a soundtrack. Lessig wanted to demonstrate how individuals can create new content by blending homemade videos with popular music. By any sensible reading, Lessig’s use of the song is covered by the legal doctrine of “fair use,” which protects the ability to describe and comment upon copyrighted material without being penalized for infringement. The videos cited by Lessig involved young people dancing to “Lisztomania,” in homage to their home cities. No one who might otherwise buy a digital single of the song would see an acceptable free substitute in Lessig’s video, which buried short snippets of the amateur tribute videos in a lot of high-minded discussion.

Nevertheless, Liberation Music, spotting the “Lisztomania” samples in Lessig’s lecture, told YouTube to take down the video in late June. The company later caved in. Lessig, aided by the Electronic Frontier Foundation, still plans to fight the takedown in US District Court in Boston, where Liberation Music had filed a complaint. He and the foundation plan to sue for damages incurred by the video going offline. It’s doubtful there’s much money involved, but Lessig’s tough stance puts copyright holders on notice that they have to consider fair use before trying to force material off the Internet.

These questions will only get more complicated, as amateur users express their enthusiasm for songs by posting unauthorized remixes and videos on the Internet — and as the spontaneous sharing of materials through YouTube and social media becomes the primary way in which musicians and others find new audiences. What’s needed is a system that recognizes a copyright holder’s general ability to control material it owns — without chilling legitimate forms of expression.

Correction: Because of a writing error, the Electronic Frontier Foundation was misidentified in an earlier version of this editorial.