Sony Music Decides Harvard’s Copyright Lecture Isn’t Illegal After All

After tearing down a Harvard Law lecture on music copyright on copyright grounds, Sony Music has now relented.

The takedown happened on YouTube last week, based on the presence of several clips of “Little Wing” to illustrate points on compulsory music licensing.  The takedown was believed to be automatically removed through YouTube’s ContentID identification system, and reinforced criticisms of an overly-blunt enforcement instrument.

As of this morning, the 24 minute lecture has now been restored, with a Digital Music News commenter tipping the news.  The reinstatement by Sony offers a solid win for proponents of the fair use doctrine, which carves out specific, non-infringing use cases of copyrighted material.

In this case, the presence of a number of recording clips of “Little Wing,” originally written and performed by Jimi Hendrix, was deemed non-infringing for the purposes of education.  Specifically, Harvard Law professor William Fisher (pictured above) was using the sequence of clips to illustrate how compulsory licenses enable any performer to cover a composition in the US, subject to certain compensation and rules.

The reinstatement effectively nullifies the chance of any retort by Harvard, with Fisher undoubtedly considering a juicy, high-profile copyright challenge.  That could have produced an unwanted and more concrete ruling on fair use, an copyright exception that remains vague in US courts.  Stronger guidance on fair use, especially if it clearly defines and broadens usage parameters, is not welcomed by major content owners like Sony.


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21 Responses

    • Ellen

      This is much ado about nothing. Content ID snags stuff like this all the time. All the uploaded need do is file counter/notice and said content is automatically restored after 10 days. Many times a copyright owner will review and release claim well before 10 days have passed because it is not infringing. The only way to enforce a claim after counter-notice is filed is to file in Federal Court. Ultimately this put rights holders at a disadvantage if claim is valid since most have deep pockets to pursue. In any case, with this example, it’s much ado about nothing. For every erroneous Content ID claim, there are thousands upon thousands of valid ones. Much is made of ‘fair us’ but what about all the real cases of infringement that occur on an hourly basis on YouTube.

      • Anonymous

        “The only way to enforce a claim after counter-notice is filed is to file in Federal Court”

        That’s not correct. Here’s the procedure:

        1) A uploads an un-authorized version of B’s video.
        2) B submits a copyright complaint (or ContentID takes it down automatically).
        3) A thinks the takedown is wrong and disputes the claim.
        4) B is notified and has 30 days to respond.
        5) If B is certain that the complaint is valid, s/he simply takes down the video — and A gets a copyright strike.
        6) If A thinks the takedown is wrong — and if s/he’s willing to bet on it financially — s/he can sue B…

      • Anonymous

        OK Ellen, I should’ve seen that you talked about counter notifications, not content disputes, sorry about that. Counter notices are indeed another option under my #6. They’re almost synonymous with suing though and not an option to most people because of the risk.

  1. Anonymous

    “The reinstatement by Sony”

    Whoa — who told you Sony did it?

    That’s not the way it works. This video is a crystal clear violation of Sony’s rights and was reinstated by either 1) Harvard or 2) YouTube.

    I hope for 2) as it could destroy YouTube.

  2. Anonymous

    I contacted Sony and asked — no, begged — them on the behalf of all IP-owners to sue the party who reinstated the video.

    Whether that’s Harvard or YouTube remains to be seen, but I doubt Harvard would be crazy enough to do that (when an uploader reinstates a video that has been taken down, he puts himself in extremely dangerous waters), so my money’s on YouTube.

    And that could break YouTube.

    Again — I’ve never seen anything like this: The infringer uploaded more than 30 seconds of a copyrighted song, published in good quality, without permission, for commercial purposes, by a commercial company.

    That’s not education, that’s a Harvard commercial, and it will be treated as such in court.

  3. Anonymous

    “the presence of a number of recording clips of “Little Wing,” originally written and performed by Jimi Hendrix, was deemed non-infringing for the purposes of education”

    Nonsense, Paul!

    Nobody has deemed the video non-infringing, except the uploader (and possibly YouTube).

    And just FYI, that doesn’t count. 🙂

  4. Anonymous

    “That could have produced an unwanted and more concrete ruling on fair use, an exception that remains vague in US courts.”

    More absolute nonsense, Paul:

    You can not mention one single case where a company got away with stealing more than 30 consecutive seconds of a copyrighted song and using the content — presented in good quality and in a non-transformative way — in a public commercial for its own products, signed and all by Harvard.

    This is a crystal clear violation of all four factors that are considered in Fair Use cases.

    • Paul Resnikoff

      I think we’re sort of saying the same thing. Clear precedents give guidance on usage, and the absence of clear cases, tests, and decisions make fair use parameters gray.

  5. Anonymous

    I just contacted the licensing department of Jimi Hendrix’ estate, let’s hope they can do something.

  6. Eponymous

    The prior commentator seems to have little understanding of how Fair Use works. First, “transformativeness” can, and often does, refer to the use of the given work, not only the work itself. In this lecture, “Little Wing” is being used to illustrate copyright law’s position on covers. This use is therefore “transformative” of the work’s original expressive use. Second, the lecture uses just enough of Little Wing to give listeners an idea of the chord progression and the vocal melody. Third, this use is highly unlikely to negatively affect the market or potential market for Little Wing as it is not only extremely truncated, but who would reasonably flip through a half hour of a lecture just to get 30 seconds of a song? This is such a clear example of Fair Use that I wonder whether the previous commentator is engaging in parody or is merely trolling.

    • Anonymous

      ““Little Wing” is being used to illustrate copyright law’s position on covers. This use is therefore “transformative””


      • Four Factors

        Try reading the Bill Graham Archives case then see if you have anything meaningful to contribute.

      • Anonymous

        OK, I’ll admit that my ‘lol’ doesn’t qualify as a meaningful contribution, though you have to agree that Eponymous’ comment was hilarious. 🙂

        On a more serious note, here’s the litmus test you use to determine whether a work is transformative:

        Make an exact copy of the 47 second Jimi Hendrix video, and decide who you need to ask for permission if you wish to use the ‘new, transformed’ work:

        A) The owner of the original version, or
        B) The owner of the ‘new, transformed’ version?

        The answer in this case is obvious, because no transformation has taken place at all — except that Sony’s sound recording now is synced to a visual presentation, which of course is illegal in itself.

    • Anonymous

      On the contrary — 20 years ago, you couldn’t get away with half of the things people do atm. There’s a much more relaxed attitude from IP owners these days.

      The reason so many people get in legal trouble is very simple: Everybody’s a publisher, but nobody knows the rules.

      So there’s a receipe for disaster…

  7. I hope you don't rep clients

    I know the law. You, apparently do not.

    Even in commercial contexts, if the basis of the use is criticism or commentary (two broadly enjoyed educational exceptions, but not the only characteristic of educational fairness), jurisprudence is weighted towards transformativeness, which is a horribly imprecise placeholder for amount/substantiality.

    Given that the snippets cannot, on their own, suffice as market substitutes for the original work, and the new work can be considered as its own form of expression potentially qualifying for one of two categories of intellectual authorship, there is little basis for an infringement claim.

    I’m not going to harp on the fact that arguing otherwise is not only factually incorrect, but strategically idiotic when we’re gearing up for a federal review of S. 512. You just keep giving the freehadists and vampire squid ammo.

    What a moron.

    • Anonymous

      “the new work can be considered as its own form of expression”

      Sorry dude, but there is no new ‘work’:

      There are the same 47 un-edited, un-modified, non-transformative, consecutive seconds of Jimi Hendrix’ song that we all know so well:

      Illegally uploaded, illegally synced to a video presentation on a commercial site, in good quality, by a very successful company.

      You can copy the clip and upload it again to YouTube and monetize it (it’s more than 30 secs) without asking Harvard for any permission.

      That would, however, be illegal because it’s Sony’s property.

      And here’s why you don’t link to any single fair use case like it:

      There isn’t any!

      • Anonymous

        I suppose Lenz’ directive to consider fairness isn’t a fair use case.

        Go back to your spiderhole. We don’t want you fucking it up for rightsholders any further.