[Infowarrior] - Lessig presentation silenced (again)

[Richard Forno]

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?