Stupid Takedown Tricks

Remix videos, mashups, memorials, fan videos and other works that build in copyrighted material sometimes get taken down from YouTube and other video sites, because automatic bot programs identify copyrighted material. And then stupidity ensues. All the audio in Larry Lessig's February speech to the Open Video Alliance was recently taken down because Warner Music Group identified some copyrighted material in clips of remixes that he used, to demonstrate the vitality of emergent participatory culture. (You can still watch it on Blip TV, though.) Journalists and the Electronic Frontier Foundation cried foul, and Lessig will contest it. And it will go back up. But YouTube needs to build into its service the human touch-an actual person needs to make a fair use judgment before YouTube plays censor on behalf of the likes of WMG. It may get more expensive for the WMGs of the world to demand such action, thanks to a 3-year-old EFF lawsuit now coming to an end. Stephanie Lenz's video of her 18-month-old baby dancing to a Prince song was stripped from YouTube on Universal's request. As the Code of Best Practices in Fair Use for Online Video makes clear, such a use was incontrovertibly fair use. EFF sued Universal, and after Universal bobbed and weaved for three years and some, a judge finally issued a partial summary judgment. Universal has to pay Stephanie Lenz's lawyers' fees. That's not as much of a financial wound as EFF had hoped to inflict, but it does put copyright holders on notice that there is a possible penalty for idly accusing people of infringement without even looking at what they did.