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Sununu Slams Music Industry ‘Dinosaurs’, Defends Lessig

Former Senator John Sununu came out with an interesting op-ed this week in the Boston Globe in support of Harvard Law Professor Lawrence Lessig in his new lawsuit.  In doing so, Sununu made some broader comments slamming ‘dinosaurs’ in the recording industry, who he claims still haven’t adapted even since “[e]arly in [his] Senate tenure,” which was 2003-2009, so around a decade ago.

In case you missed it, Lessig filed suit a few weeks ago, with the help of the Electronic Frontier Foundation (EFF), after a music licensing entity seemed ignorant of how fair use considerations would apply to the DMCA takedown process.  Lessig had uploaded a video of his 2010 talk at a Creative Commons conference on YouTube, which used several short clips of the Phoenix song “Lisztomania” in making a broader point about how people use the Internet to communicate and create culture.  In 2013, Liberation Music filed a takedown notice over Lessig’s video, which was a clear fair use for multiple reasons, including almost all of the specified uses in 17 U.S.C. § 107 — “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” — and the modern trend of transformativeness, due to the very different context of his use from its original purpose.

Indeed, Lessig’s use here seems so conspicuously fair use that YouTube’s official blog described these very circumstances in a fair use hypothetical several years ago.  In a post explaining why “Content ID,” its automated filtering software, might have difficulty appreciating fair use, YouTube cited an example of an “audio clip in a videotaped University lecture about copyright law.”  (For more of an explanation about why Lessig’s use is fair use, see the complaint.)  Lessig submitted a counter-notice, which is permitted by right under the DMCA.  In response, Liberation Music threatened to sue Lessig if he did not withdraw his counter-notice.  Lessig did so, but subsequently filed suit himself, seeking a declaration from a federal court in Massachusetts that his use is protected by fair use and not infringing, injunctive relief preventing Liberation Music from further asserting a copyright claim against Lessig, and damages and litigation costs.  This suit has the potential to create important precedent on fair use, a doctrine that, as I’ve explained before, is essential for innovation and disruption.

In addition to highlighting Lessig’s suit, Sununu also explains that many in the music industry have maintained obsolete priorities in the face of threatening new technologies, choosing to use their resources to try to enforce copyright, rather than investing in digital innovation to better facilitate the public’s lawful consumption of copyrighted material.  He reminds us about the recording industry’s 35,000 cases against their own consumers for alleged filesharing, a disastrous campaign that they apparently claimed was successful.

Sununu also explains that much of the innovation that has happened has been from technology companies, which benefits creators by enabling new revenue streams, and consumers by providing lawful, modern ways for consuming content.  “The only losers are the dinosaurs.”  Well said, Senator.

Intellectual Property

The Internet enables the free exchange of ideas and content that, in turn, promote creativity, commerce, and innovation. However, a balanced approach to copyright, trademarks, and patents is critical to this creative and entrepreneurial spirit the Internet has fostered. Consequently, it is our belief that the intellectual property system should encourage innovation, while not impeding new business models and open-source developments.