YouTube’s copyright violation scanner bots are notoriously militaristic, to the point of disregard for lawful fair use. Now one copyright law professor is fighting back.

Lawrence Lessig February 2008 1024x682 Have YouTubes copyright bots met their match?

Minutes before AMD was set to begin the keynote at its #gpu14 tech day event in Honolulu, the YouTube live stream of the event was cut off.

 It turned out this wasn’t because of a “technical error” on YouTube’s part, or an internet outage in the venue. To the dismay of the nearly 30,000 people watching — and the legion of moronic commentators in the livestream’s chatroom — the stream was nixed because of alleged copyright violations. These “violations” were from YouTube’s bots picking up the background music being played in the venue over the PA to create a pumped up atmosphere before the show began.

Production staff quickly got on the phone with YouTube. While only production staff were privy to the exact details of the call, judging by how quickly they switched livestream providers, negotiation — even coming from a company as large as AMD — with YouTube was going to be a non-starter.

 This scenario doesn’t make much sense from a legal standpoint. Obviously AMD and the production company doing the keynote’s stageshow would have the requisite licenses to use commercial music at such a large event. But YouTube, with his near hegemony in the space, appeared that it couldn’t be bothered to do due diligence to examine whether the copyrighted music was being lawfully used in this circumstance.

Issues like this are a pet peeve of Harvard law professor and Creative Commons co-founder Lawrence Lessig.

Lessig is currently involved in a legal spat with an Australian record company and YouTube for acting in what he calls bad faith when they demanded that he take down a video of a lecture he gave that contained remixes of the song “Lisztomania” by the band Phoenix. He says both YouTube and the record company ignored his appeals to YouTube’s decision, even when pointed out how the law was on his side.

U.S fair use law (and this principle is upheld in fair use statue around the world) says that copyrighted materials may be used for “purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”

“If I’m using it for purposes of critique, then I can use if even if I don’t have permission of the original copyright owner,” he said on  All Things Considered in a September 27 interview.

Lessig filed a suit against Liberation Music, the company that holds the copyright to the Phoenix song, in the state of Massachusetts, in July.

“Defendant’s conduct has forced Professor Lessig to choose between sharing his work and views publicly and risking legal liability,” Lessig says in the complaint. “Professor Lessig is entitled to declaratory judgment that his use in his “Open” lecture of video clips that used “Lisztomania” as a soundtrack is lawful under the fair use doctrine and does not infringe the Defendant’s copyright.

Lessig doesn’t appear to be seeking a financial settlement outside of court costs associated with filing the suit. Speaking to NPR he said the point of the suit is to stop YouTube from relying on automated systems to send out takedown notices.

“What we’ve got is this computerized system threatening people about content that’s on the Web, much of it legally on the Web,” Lessig said to NPR. “What we think of as a very significant chilling of completely legitimate and protected speech.”

A farewell to bots?

Lessig’s situation is slightly different than what happened to AMD, but it should likely serve as a wake up call to YouTube.

YouTube’s sheer size means that for the most part it is able to enforce its own interpretation of copyright law, with substantial input from the “big content” industry which has traditionally been hostile to all parts of copyright law except for the provisions about getting money for content created.

Considering the amount of money Hollywood has donated to the Obama campaign, and the close ties between the MPAA and Joe Biden, a push for copyright reform — or at least a reform of how copyright is enforced — isn’t like to come from the top.

Should Lessig’s case come out in his favor, it will likely be a wake up call to overzealous copyright enforcement by YouTube. Considering YouTube’s nonchalant attitude towards AMD’s heavily trafficked stream in favor of its team of its own army of copyright bots, such a change is long overdue.