This story doesn’t have a lot to do with ebooks, but one of the underpinnings is a landmark fair use case involving Lawrence Lessig that touches upon some of the same Youtube fair use issues that remain contentious to this day.
I am referring, of course, to the utterly ridiculous right-wing attempt to shame freshman congresswoman Alexandria Ocasio-Cortez by resurfacing a frankly adorable music video from her college days, in which she (and some fellow Boston University students) danced to the song “Lisztomania” by Phoenix. This video was produced as part of a viral meme prompted by a fan music video for that song mixing dance scenes from a number of eighties “brat pack” movies.
As Wired reports, the meme caught the attention of Lawrence Lessig, who used clips from some of the videos in a presentation he gave about remix culture. And then Lessig’s video of the presentation caught the attention of Phoenix’s record label, Liberation Music, who filed a DMCA claim against it, and then threatened to sue Lessig for copyright infringement unless he retracted his DMCA counter-claim. (Apparently someone at Liberation wasn’t paying attention, or they would have realized it might be a bad idea to threaten the copyright reform idealist who took a suit against the Copyright Term Extension Act all the way to the Supreme Court.)
Lessig dutifully retracted the claim—then he sued Phoenix for damages for violating the DMCA provision prohibiting frivolous takedown notices. That provision had, notably, never proven to have a lot of teeth, as all most defendents needed to do to get off the hook was bat their eyes at the judge and say, “Golly, Your Honor, it sure looked like a copyright infringement to us.” Sad to say, the provision didn’t have its day in court this time, either—because, perhaps realizing it stood to lose big if the matter got to a court, Phoenix opted to settle for an undisclosed sum and an admission of wrongdoing.
And, perhaps as a direct result of this, the label stopped going after anyone else posting such videos—which is why the one with Alexandria Ocasio-Cortez in it survived on YouTube long enough for someone to notice and try to smear her with it. Happily (and unsurprisingly), the campaign has backfired in a big way. If a cute video like that is the worst thing they can turn up to smear AOC with, she’s got to have lived like some kind of a saint.
But the same issues raised by the Lessig suit are still haunting YouTube video creators, as the “Where’s the Fair Use” controversy of 2016 demonstrates. YouTube uses an automated copyrighted-content detector to try to head off copyright violations, and this system has a strong bias favoring the copyright creators. A 2017 article from the University of Chicago Law Review points out that copyright enforement is becoming more and more reliant on algorithms and automation to detect infringement, and that this can have considerable drawbacks when it comes to enforcing copyright effectively.
It seems that the fundamental problem is that algorithms can detect whether something has been excerpted from copyright material, but determining fair use takes human judgment. And as the Lessig “Lisztomania” case shows, even humans who are theoretically capable of exercising judgment may find it in their own best interest not to.