Piracy Journal: Curb Your Enthusiasm

Peter Phinney

Too often, content owners pursue instances of copyright infringement in desperation and with anger. If you take it as a personal attack that someone is distributing your content without your permission, it might be better to hire someone impartial to pursue piracy on your behalf. And best to look for a consultant who examines each case individually and puts infringement in context, testing each case against the fair-use doctrine, codified as 17 U.S.C. § 107 of the copyright law.

That means looking at each infringement individually, with human eyes on the screen. Casting a wide net by using search terms, even names of performers or membership sites, can sometimes create big head aches if each infringement is automatically sent out as a DMCA notice without actually making sure that the content is what it claims to be. And worse yet, some folks dig in when their infringement notices are questioned, doubling down on faulty reporting rather than looking into a counter claim and preparing a heart-felt apology.

It's important to keep in mind that anger makes people act impulsively, and when it comes to the law, impulsive behavior is almost always what gets people into trouble.

Case in point: the recently settled case Lawrence Lessig vs. Liberation Music. Professor Lessig prevailed in his claim that his use was “fair use” of the song “Lisztomania” by the French band Phoenix. Here’s the back story. Lessig posted a video of his keynote speech at the Creative Commons Asia Conference to YouTube, including several truncated, promotional video clips produced by various cities that remixed the song “Liztomania.” He used the clips to highlight emerging styles of cultural communication on the Internet.

It’s been put back up on YouTube as part of the settlement in the case, which also included a cash payment to Lessig, which he in turn donated to the Electronic Frontier Foundation to be used to support open access.

Liberation Music routinely removes infringing content from YouTube using their backend removal tool — infringing content that’s owned by Liberation’s clients, including the band Phoenix. When they found the clips, they used their removal tool to take Lessig’s recorded talk offline.

When Lessig was notified by YouTube that his speech had been removed from their platform under DMCA notification of copyright infringement, he filed a counterclaim under the DMCA asserting that his should be considered fair use of the copyrighted song. Unfortunately for Liberation Music, rather than reviewing their action and the context in which Lessig used the copyrighted music, they decided instead to rattle their saber and they threatened to sue Lessig in federal court. Liberation Music is an Australian record label. So maybe it’s simply that they didn’t recognize Larry Lessig’s name, or the individual staff member who replied to the counter claim was half asleep when he fired off a form letter reasserting their right to control distribution of their clients’ copyrighted music.

If you don’t recognize his name either, Lawrence Lessig is one of the cofounders of nonprofit Creative Commons and author of numerous books on open source computing, intellectual property law and technology. He’s currently a professor at Harvard Law School. Before coming to Harvard, he taught at Stanford. The concept of fair use is a tricky one, but if there is anyone who understands how to navigate copyright, it’s Larry Lessig.

I’ve known him for years and despite what you may have heard about his adamant support of “sharing and re-mixing” content, one thing I can vouch for is that Larry Lessig is an extremely fair-minded and generous guy. Had Liberation reviewed his counter claim, withdrawn their original notice and apologized for their error, (instead of doubling down and threatening to sue him,) I have every confidence that he would have accepted their apology and all would have been forgotten.

It’s a shame.

But the system worked. Liberation Music learned a valuable lesson about taking care when they’re reporting infringing content, and the publicity around the case should give others pause when they’re reporting infringements without examining the situation and then more importantly, when they dig their heels in if someone pushes back against a removal notice, without examining the individual case and preparing to take responsibility for having made a mistake. It’s important to keep in mind that anger makes people act impulsively, and when it comes to the law, impulsive behavior is almost always what gets people into trouble.

It’s almost always better to hire someone to effect removals for you, than it is to try to keep up with it using your in-house staff. It’s generally far less expensive to farm that work out, you’re likely to be able to get some pretty sophisticated reporting of which of your titles are getting stolen and how long it takes from the time they’re publically released (sadly, some content actually shows up on offer before it goes live on membership sites.) And you’ll be able to keep track of trends from month to month.

Using someone in-house when they’re free between taking phone orders or after editing a scene usually won’t effectively curb theft of your content.

And a third party is far less likely to approach policing piracy from a position of anger, which will result in better accuracy, fewer false positives, and less potential for counter-claims or complaints from legitimate users and affiliates.

Everyone in adult is angry about piracy. And we have a right to be angry. There are several ways to deal with that anger — some appropriate, and some less so. Channeling it into your work out routine is one of the best ideas. Certainly don’t take it out on your staff and don’t take it out on your significant other. Issuing DMCA notices when you’re angry is like going grocery shopping when you’re hungry. Neither one is ever a good strategy if you’re really concerned about protecting your assets, or your waistline.

Peter Phinney runs Porn Guardian with business partner Dominic Ford. The company offers a full suite of anti-piracy services to the adult industry and currently represents more than 370 individual brands across all content niches.