Lessig Prevails on Little Used DMCA Provision, and Fourth Amendment Protection of Cell Phones

Way back in August of 2013, I wrote a blog post documenting a legal dispute between law professor Lawrence Lessig and Liberation Music (https://nicoterablawg.wordpress.com/2013/08/23/dmca-overreach-how-a-little-used-provision-makes-a-big-difference/).  Liberation owned the rights to a song by the band Phoenix called Lisztomania, which Lessig used in a Creative Commons conference.  Recently, Lessig and Liberation settled (http://torrentfreak.com/lawrence-lessig-wins-damages-for-bogus-youtube-takedown-140228/).  The settlement involved Liberation paying an undisclosed amount to the Electronic Frontier Foundation and “fixing” its DMCA takedown policies to account for fair use.

Anyone with knowledge of fair use provisions could have seen this result coming.  As stated in the earlier article, I liked this case for two reasons.  First, it served as an illustration of how fair use operates as an exception to normal copyright protection (it helps when the defendant is a law professor talking about fair use).  Second, it highlighted a little used provision of the DMCA (512(f) specifically) designed to discourage takedowns where the copyright owner knowingly misrepresents either their ownership of the material or the infringing nature of the use.  The previous article covered 512(f) is a lot of detail, so I will only summarize how that provision works here.  Basically, the copyright holder is liable for damages if they knew or should have known that they either did not own the rights to the work at issue or that no infringement occurred.  The difficulty lies in proving that “knowing” standard, since fair use usually involves some rather complicated analysis.  In this case, the educational use of Lisztomania likely met the “knowing” standard.  Defendants invoke 512(f) so rarely that there is very little case law explaining it further.  I actually hoped for a court case simply to provide some case law, but the settlement reminding people at the DMCA does contain a provision that gives wrongful takedown victims some recourse.

Since today’s post is rather short, I figure I’ll also highlight a case to follow going into the upcoming Supreme Court session.  The Supreme Court is going to hear two cases dealing with whether individuals have a reasonable expectation of privacy in the contents of their cell phones after arrest (http://arstechnica.com/tech-policy/2014/01/supreme-court-will-hear-case-on-police-search-of-cell-phones/).  A third case, from the Texas Court of Criminal Appeals, recently held that individual’s do possess a reasonable expectation of privacy in the contents of their cell phones after they have been arrested (http://arstechnica.com/tech-policy/2014/02/texas-appeals-court-says-police-cant-search-your-phone-after-youre-jailed/).  The Texas Court’s majority held that a cell phone was similar to the “papers and effects” that the Fourth Amendment grants people a right of security.  The logic stems from electronic devices containing documents and information that would previously been confined to places already granted Fourth Amendment protection (such as filing cabinets, desks, and folders).  Whether five justices on the Supreme Court accept this argument should be interesting to see.  At any rate, this is a case to follow going forward.

Update (11:00 AM):  It appears that Phoenix, the band whose song is at the heart of the lawsuit, issued a statement supporting the fair use of their music: http://wearephoenix.tumblr.com/post/78111467465/we-support-fair-use-of-our-music-we-were-upset-to#disqus_thread.  The statement includes an embedded YouTube video of Lessig’s lecture as well.

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