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Case 1:13-cv-12028-NMG Document 1 Filed 08/22/13 Page 1 of 11
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`CASE NO:
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`
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`COMPLAINT
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`)))))))))))
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`
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`COMPLAINT
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`NATURE OF ACTION AND RELIEF SOUGHT
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`1.
`
`This is a civil action seeking a declaratory judgment, injunctive relief, and
`
`damages for misrepresentation under Title II of the Digital Millennium Copyright Act, as
`
`codified at 17 U.S.C. § 512.
`2.
`
`This case arises from
`
`the defendant’s
`
`improper assertion of copyright
`
`infringement against plaintiff Lawrence Lessig, a Harvard Law School professor (“Professor
`
`Lessig”). The infringement claim was based on Professor Lessig’s posting, on the Internet video
`
`website YouTube, of a video recording of a lecture that Professor Lessig delivered at a
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`conference of Creative Commons, a non-profit organization devoted to expanding digital
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`creativity, sharing, and innovation. As a result of defendant’s assertion of infringement,
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`YouTube disabled public access to the video. Further legal threats from the defendant forced
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`Professor Lessig to continue to keep the video offline pending a ruling from this Court.
`3.
`
`Because Professor Lessig’s use of the copyrighted material in question is lawful
`
`under the statutory “fair use” doctrine set forth in the Copyright Act, 17 U.S.C. § 107, Professor
`
`Lessig brings this action to clarify the rights of the parties and to refute the defendant’s assertions
`
`of copyright infringement.
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`WAI‐3138551v1
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`1
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`
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`LAWRENCE LESSIG,
`
`
`
`Plaintiff,
`
`v.
`
`
`LIBERATION MUSIC PTY LTD,
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`
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`Defendant.
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`

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`Case 1:13-cv-12028-NMG Document 1 Filed 08/22/13 Page 2 of 11
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`4.
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`Professor Lessig also seeks damages under the Digital Millennium Copyright Act,
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`17 U.S.C. § 512(f), in compensation for the defendant’s knowing and material misrepresentation
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`that Professor Lessig’s video infringed the defendant’s copyright interests.
`
`PARTIES
`
`5.
`
`Plaintiff Lawrence Lessig is the director of the Edmond J. Safra Center for Ethics
`
`at Harvard University and the Roy L. Furman Professor of Law and Leadership at Harvard Law
`
`School in Cambridge, Massachusetts. He resides in Brookline, Massachusetts.
`6.
`
`Defendant Liberation Music Pty Ltd (“Liberation Music”) is a record company
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`based in Melbourne, Australia.
`7.
`
`On information and belief, Liberation Music claims to be authorized to enforce
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`the copyrights of an alternative rock band named Phoenix, which is based in Versailles, France.
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`JURISDICTION AND VENUE
`
`8.
`
`This action arises under the copyright laws of the United States, 17 U.S.C. §§ 101
`
`et seq., and Title II of the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 512.
`9.
`
`This Court has subject matter jurisdiction over these claims pursuant to 28 U.S.C.
`
`§§ 1331 and 1338, and the Declaratory Judgment Act, 28 U.S.C. § 2201.
`10.
`
`This Court has personal jurisdiction over Liberation Music because Liberation
`
`Music intentionally caused harm to Professor Lessig in Massachusetts, issued its copyright threat
`
`to Professor Lessig in Massachusetts, and, on information and belief, conducts regular business
`
`in Massachusetts.
`11.
`
`Liberation Music does substantial business in the United States. Liberation Music
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`products, by artists such as Archie Roach, Jimmie Barnes, and Hunters & Collectors, are widely
`
`available for sale in the United States through Amazon.com and iTunes. Liberation Music also
`
`does business in the United States by entering into licensing agreements with domestic record
`
`companies, such as an exclusive license to Glassnote Entertainment Group LLC and Columbia
`
`Records to distribute products by the artist Temper Trap in the United States.
`12.
`
`Venue for this action is proper under 28 U.S.C. §1391(b)(2).
`
`WAI‐3138551v1
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`2
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`Case 1:13-cv-12028-NMG Document 1 Filed 08/22/13 Page 3 of 11
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`FACTUAL ALLEGATIONS
`
`13.
`
`Professor Lawrence Lessig is an internationally renowned expert on law and
`
`technology, with a special focus on copyright issues and, in recent years, campaign finance and
`
`political reform.
`14.
`
`Professor Lessig has published numerous books and articles on copyright in the
`
`digital age, and served as legal counsel for the plaintiffs in two of the most influential copyright
`
`cases in recent years, Eldred v. Ashcroft, 537 U.S. 186 (2003), and Golan v. Gonzales, 501 F.3d
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`1179 (10th Cir. 2007).
`15.
`
`Professor Lessig is a co-founder of several nonprofit organizations, including
`
`Creative Commons, which is devoted to expanding the range of creative works available for
`
`others to build upon and share legally. Since it was founded in 2001, Creative Commons has
`
`grown to an international movement with over 100 affiliates around the globe.
`16.
`
`Professor Lessig is a Member of the American Academy of Arts and Sciences and
`
`the American Philosophical Association. He has received numerous awards, including the Free
`
`Software Foundation’s Freedom Award, and the Fastcase 50 Award, which recognizes “the law’s
`
`smartest, most courageous innovators, techies, visionaries & leaders.”
`17.
`
`Professor Lessig has been named one of Scientific American’s Top 50
`
`Visionaries.
`18.
`
`Throughout his career, Professor Lessig has endeavored to promote his concerns
`
`and ideas to as wide an audience as possible.
`19.
`
`In addition to his teaching schedule at Harvard Law School, Professor Lessig is a
`
`prominent public speaker. He has delivered lectures in a variety of forums around the world,
`
`seeking to educate the public about law, technology, and political reform.
`20.
`
`Professor Lessig posts many of his lectures on the website YouTube, in order to
`
`help inform the public about issues relating to law, technology, and political corruption.
`
`WAI‐3138551v1
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`Case 1:13-cv-12028-NMG Document 1 Filed 08/22/13 Page 4 of 11
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`21.
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`YouTube is a video-sharing website where millions of Internet users post videos
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`which are then available to others for viewing. These videos range from traditional home
`
`recordings of personal events to news reports, advertisements, and television programs.
`22.
`
`Professor Lessig has uploaded over 50 original lectures to YouTube where,
`
`cumulatively, they have been viewed over 100,000 times.
`
`Professor Lessig’s “Open” Lecture
`
`23.
`
`On June 4, 2010, Professor Lessig delivered the keynote address at a Creative
`
`Commons conference in Seoul, South Korea.
`24.
`
`In the 49-minute lecture, titled “Open,” Professor Lessig discussed the present
`
`and future of cultural and technological innovation.
`25.
`
`The lecture included several clips of amateur music videos in order to illustrate
`
`cultural developments in the age of the Internet.
`26.
`
`One set of clips was taken from videos created by amateurs around the world,
`
`each of which depicts groups of people dancing to the same song, “Lisztomania,” by the band
`
`Phoenix.
`27.
`
`The “Lisztomania” copycat video phenomenon started when a YouTube user,
`
`called “avoidant consumer,” posted on YouTube a video combining scenes from several movies,
`
`with the song “Lisztomania” serving as the soundtrack to the video.
`28.
`
`Inspired by avoidant consumer’s work, other YouTube users from around the
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`world, located in places as disparate as Brooklyn and San Francisco as well as Latvia, Kenya,
`
`Brazil and Israel, created their own versions of the video, with real people “performing” the roles
`
`of the actors in the original movies, and again with “Lisztomania” as the soundtrack.
`29.
`
`Professor Lessig included these clips in the “Open” lecture to illustrate how
`
`young people are using videos and other tools to create and communicate via the Internet.
`30.
`
`Professor Lessig refers to this kind of communication as the latest in a time-
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`honored “call and response” tradition of communication.
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`WAI‐3138551v1
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`Case 1:13-cv-12028-NMG Document 1 Filed 08/22/13 Page 5 of 11
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`The Fair Use Doctrine
`
`31.
`
`Pursuant to Section 107 of the Copyright Act, 17 U.S.C. § 107, certain uses of
`
`copyrighted works are authorized by law as “fair uses.”
`32.
`
`In determining whether the use of a copyrighted work in any particular case is
`
`protected as fair use, the statutory factors to be considered include (1) the purpose and character
`
`of the use, including whether such use is of a commercial nature or is for nonprofit educational
`
`purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion
`
`used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the
`
`potential market for or value of the copyrighted work. 17 U.S.C. § 107.
`33.
`
`Professor Lessig’s illustrative use of the clips in question, particularly in the
`
`context of a public lecture about culture and the Internet, is permitted under the fair use doctrine
`
`and, therefore, does not infringe the defendant’s copyright.
`34.
`
`Professor Lessig’s purpose was non-commercial and highly transformative, in
`
`that it was entirely different from Phoenix’s original purpose in creating the work. Whereas
`
`Phoenix’s original purpose was presumably to entertain music fans, and to make money doing
`
`so, Professor Lessig’s purpose was educational, and neither Professor Lessig nor Creative
`
`Commons gained any profit from the illustrative use of the clips in question in the “Open”
`
`lecture.
`35.
`
`The nature of the original work is creative. However, because the song
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`“Lisztomania” was released on April 16, 2009, and the album containing the song was released
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`worldwide on May 25, 2009, Professor Lessig’s limited use of brief video clips using
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`“Lisztomania” as a soundtrack did not compromise Phoenix’s or the defendant’s rights to control
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`the first appearance of the song.
`36.
`
`The amount used was minimal: Professor Lessig incorporated into his lecture five
`
`clips of videos using the song as a soundtrack. While the song “Lisztomania” as released by
`
`Phoenix is just over four minutes long, the five clips used in the “Open” lecture ranged in length
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`WAI‐3138551v1
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`Case 1:13-cv-12028-NMG Document 1 Filed 08/22/13 Page 6 of 11
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`from only 10 seconds to 47 seconds, no more than needed to illustrate the phenomenon in order
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`to comment upon it.
`37.
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`Professor Lessig’s use caused no market harm. Professor Lessig’s 49-minute
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`scholarly lecture included only short clips of videos that were set to the song “Lisztomania,” with
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`Professor Lessig continuing to lecture over the music. The “Open” lecture is not a market
`
`substitute for a sound or video recording of the song “Lisztomania” and the lecture did not harm
`
`any market for the song.
`38.
`
`On or about June 8, 2013, Professor Lessig arranged to have a video of the
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`“Open” lecture posted on YouTube.
`
`The Digital Millennium Copyright Act and the “Takedown” Procedure
`39.
`
`Title II of the Digital Millennium Copyright Act of 1998 (“DMCA”), 17 U.S.C.
`
`§ 512, grants online service providers (like YouTube) protections from secondary copyright
`
`infringement liability, so long as they meet certain requirements.
`40.
`
`One requirement of this DMCA “safe harbor” is that online service providers
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`must implement a "notice-and-takedown" system.
`41.
`
`The DMCA provides that the owner of copyrighted material may submit a
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`“takedown notice” to an online service provider that is hosting material that allegedly infringes
`
`the copyright held by the issuer of the notice.
`42.
`
`The DMCA provides that a takedown notice should be in writing and should state,
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`among other things, that the complaining party has a good faith belief that the use of the material
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`is not authorized by the copyright owner or by law. 17 U.S.C. § 512(c)(3).
`43.
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`Upon receipt of a proper takedown notice, a service provider must “respond[]
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`expeditiously to remove, or disable access to, the material that is claimed to be infringing or to
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`be the subject of infringing activity.” 17 U.S.C. § 512(c)(1)(C).
`44.
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`The DMCA then provides that the user who posted the allegedly infringing
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`material that is the subject of the takedown notice may in turn submit a “counter-notice”
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`contesting the claim of infringement.
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`WAI‐3138551v1
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`Case 1:13-cv-12028-NMG Document 1 Filed 08/22/13 Page 7 of 11
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`45.
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`In order to be valid, the counter-notice must include the user’s contact
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`information, a signature, a statement under penalty of perjury that the “material was removed or
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`disabled as a result of a mistake or misidentification,” and the user’s consent to the jurisdiction
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`of his or her local federal court. 17 U.S.C. § 512(g).
`46.
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`Once a counter-notice has been submitted, the copyright owner has 10-14
`
`business days to file a copyright infringement lawsuit against the user. If the copyright owner
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`does not do so, the service provider can restore the video without fear of secondary liability for
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`copyright infringement.
`47.
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`Section 512(f) of the DMCA also creates a cause of action for the user who
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`posted the allegedly infringing material against “[a]ny person who knowingly materially
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`misrepresents under this section (1) that material or activity is infringing, or (2) that material or
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`activity was removed or disabled by mistake or misidentification.” 17 U.S.C § 512(f).
`
`The Takedown
`
`48.
`
`On information and belief, Defendant Liberation Music is a sophisticated music
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`industry company with extensive experience in copyright law, and with staff who are familiar
`
`with the DMCA (including the Section 512 “good faith” requirements) and with the principles
`
`and application of the fair use doctrine.
`49.
`
`On June 30, 2013, Professor Lessig received a notice from YouTube that his
`
`video posting of the “Open” lecture had been identified as having content owned or licensed by
`
`Viacom and, as a result, had been blocked, pursuant to YouTube’s filtering procedures.
`50.
`
`On information and belief, around the same time, Liberation Music, and/or its
`
`representative, also caused YouTube to block the video. Professor Lessig did not receive a
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`notice of that block, however.
`51.
`
`In accordance with YouTube’s procedures, Professor Lessig filed a notice
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`disputing the Viacom block, and YouTube restored access to the video.
`52.
`
`On information and belief, when YouTube was set to restore access to the video,
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`WAI‐3138551v1
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`Liberation Music, and/or its representative, issued a DMCA takedown notice.
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`7
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`Case 1:13-cv-12028-NMG Document 1 Filed 08/22/13 Page 8 of 11
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`53.
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`On or about June 30, 2013, Liberation Music submitted a DMCA takedown notice
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`to YouTube demanding the removal of the video of the “Open” lecture from the YouTube
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`website, claiming the video infringed a copyright owned or administered by Liberation Music.
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`On information and belief, before it submitted its DMCA takedown notice, Liberation Music was
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`presented with an express warning that “any person who knowingly misrepresents that material
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`or activity is infringing may be subject to liability.”
`54.
`
`As a result of Liberation Music’s takedown notice, YouTube shut down public
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`access to the video of the “Open” lecture.
`55.
`
`On June 30, YouTube sent Professor Lessig an email notifying him that it had
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`removed the video of the “Open” lecture, pursuant to a complaint from Liberation Music that the
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`material was infringing. The email warned Professor Lessig that repeated incidents of copyright
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`infringement could lead to the deletion of his YouTube account and all videos uploaded to the
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`account. See Notice of Video Removal, attached hereto as Exhibit A.
`56.
`
`On July 3, 2013, Professor Lessig submitted a counter-notice pursuant to Section
`
`512(g).
`57.
`58.
`59.
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`YouTube subsequently forwarded the counter-notice to Liberation Music.
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`On July 8, 2013, Liberation Music emailed Professor Lessig directly.
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`The July 8 email stated that Liberation Music would “commence legal
`
`proceedings in the United States District Court for the District of Massachusetts . . . for copyright
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`infringement” against Professor Lessig “in 72 hours” if he did not retract his counter-notice.
`60.
`
`The July 8 email further stated that “This is your official notice and warning of
`
`the commencement of these proceedings.” It also quoted material from YouTube’s website
`
`regarding the penalties for copyright infringement. See Response to Counter-Notice, attached
`
`hereto as Exhibit B.
`61.
`
`On July 10, 2013, in response to Liberation Music’s threat of litigation, Professor
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`Lessig retracted his counter-notice. The video of his “Open” lecture continues to this date to be
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`removed from the YouTube website.
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`WAI‐3138551v1
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`8
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`Case 1:13-cv-12028-NMG Document 1 Filed 08/22/13 Page 9 of 11
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`COUNT I
`[Declaratory Relief Pursuant to 28 U.S.C. § 2201, et seq. (Declaratory Judgment Act)
`and the Copyright Act (Title 17 of the U.S. Code)]
`
`62.
`
`Plaintiff Professor Lessig incorporates by reference the allegations in each of the
`
`preceding paragraphs as if fully set forth in this paragraph.
`63.
`
`There is a real and actual controversy between Professor Lessig and Defendant
`
`regarding whether Professor Lessig’s use in his “Open” lecture of video clips using the song
`
`“Lisztomania,” and his posting of a video of that lecture on YouTube, infringes a copyright that
`
`Defendant lawfully owns or administers.
`64.
`
`Defendant’s conduct has forced Professor Lessig to choose between sharing his
`
`work and views publicly and risking legal liability. The controversy between Professor Lessig
`
`and Defendant is thus real and substantial and demands specific relief through a decree of a
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`conclusive character.
`65.
`
`Professor Lessig is entitled to declaratory judgment that his use in his “Open”
`
`lecture of video clips that used “Lisztomania” as a soundtrack is lawful under the fair use
`
`doctrine and does not infringe the Defendant’s copyright.
`
`COUNT II
`
`[Violation of Section 512(f) of the Digital Millennium Copyright Act]
`
`66.
`
`Professor Lessig incorporates by reference the allegations in each of the preceding
`
`paragraphs as if fully set forth in this paragraph.
`67.
`
`Professor Lessig’s use in his “Open” lecture of video clips that used
`
`“Lisztomania” as a soundtrack is lawful under the fair use doctrine and does not infringe any
`
`copyright that Defendant owns or administers.
`68.
`
`On information and belief, Defendant knew that the “Open” lecture did not
`
`infringe its copyright when it sent YouTube the takedown notice regarding the video of the
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`“Open” lecture. Defendant acted in bad faith when it sent the takedown notice, knowingly and
`
`materially misrepresenting that it had concluded that the video was infringing.
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`WAI‐3138551v1
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`Case 1:13-cv-12028-NMG Document 1 Filed 08/22/13 Page 10 of 11
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`69.
`
`In the alternative, Defendant should have known, if it had acted with reasonable
`
`care or diligence, that the video of the “Open” lecture did not infringe Defendant’s copyright on
`
`the date it sent YouTube its complaint under the DMCA.
`70.
`
`As a direct and proximate result of Defendant’s actions, Plaintiff has been injured
`
`substantially and irreparably. Such injury includes, but is not limited to, the financial and
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`personal expenses associated with responding to the claim of infringement, harm to his free
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`speech rights under the First Amendment, and attorneys’ fees and costs.
`
`
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiff prays for judgment against the Defendant as follows:
`1.
`
`For a declaration that publication of the video recording of Professor Lessig’s
`
`lecture “Open” is protected by the fair use doctrine and does not infringe
`
`Defendant’s copyright;
`
`For an order enjoining Defendant, its agents, attorneys, and assigns from asserting
`
`a copyright claim against Professor Lessig in connection with his lecture “Open”;
`
`For damages according to proof;
`
`For costs of suit incurred herein, including reasonable attorneys’ fees; and
`
`For such other and further relief as the Court may deem just and proper.
`
`2.
`
`3.
`4.
`5.
`
`
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`
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`Dated: August 22, 2013
`
`Of Counsel:
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`Corynne McSherry
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`
`Daniel Nazer
`
`
`Mitch Stoltz
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`ELECTRONIC FRONTIER
`FOUNDATION
`
`
`815 Eddy Street
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`
`San Francisco, CA 94109
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`Tel: (415) 436-9333
`Fax: (415) 436-9993
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`WAI‐3138551v1
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`__/s/ Christopher M. Morrison ________
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`By:
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`
`
`Christopher M. Morrison
`James L. Tuxbury
`JONES DAY
`100 High Street
`21st Floor
`Boston, MA 02110
`Tel: (617) 960-3939
`Fax: (617) 449-6999
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`10
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`Case 1:13-cv-12028-NMG Document 1 Filed 08/22/13 Page 11 of 11
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`Geoffrey S. Stewart
`Edwin L. Fountain
`JONES DAY
`51 Louisiana Avenue, N.W
`Washington, D.C. 20001-2113
`Tel: (202) 879-3939
`Fax: (202) 626-1700
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`Attorneys for Plaintiff Lawrence Lessig
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`WAI‐3138551v1
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`11

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