Thursday marked one of the most important days in congressional history for diversity. A record 102 women took office, 35 whom were newly-elected. They include Ilhan Omar and Rashida Tlaib, the first Muslim women to serve in the House of Representatives, and Deb Haaland and Sharice Davids, the first Native American women. Alexandria Ocasio-Cortez, now the youngest congresswoman in history, also took the oath of office. The night before her swearing-in took place, a nearly decade-old clip of the 29-year-old began to resurface online, where she and other students dance to Phoenix’s then-hit song “Lisztomania.” It was uploaded to YouTube the year before she graduated from Boston University in 2011.
There’s nothing remotely scandalous about the video, but that hasn’t stopped right-wing Twitter users from attempting to weaponize it against Ocasio-Cortez, who is a Democratic Socialist. The New York representative is likely used to these types of attacks. Since winning her election in November, Ocasio-Cortez has been criticized for the clothes she wears, her bank balance, her modest childhood home, and now, apparently, for dancing in college.
But the reason Ocasio-Cortez’ detractors were able to find the video on the internet in the first place is far more interesting than their criticism. The story demonstrates how copyright law is often used to squash free expression on the internet—and sometimes even potentially erase a video featuring a future member of Congress.
The Ocasio-Cortez “Lisztomania” video was inspired by a separate YouTube clip uploaded in March 2009 by a woman named Sarah Newhouse (it has since been deleted; more on that later). Newhouse mixed the song with parts of iconic dancing scenes from 1980s “Brat Pack” movies like The Breakfast Club, which originally featured Karla DeVito’s “We Are Not Alone,” and Pretty in Pink starring Molly Ringwald and Jon Cryer.
“The video itself came as a product of being a creative type with too much time on my hands, having then-recently lost my job, spending time just editing goofy nonsensical videos to keep myself sane,” Newhouse said in a Twitter direct message. “I was also a fan of using YouTube Doubler to play with video and audio, and that combined with Phoenix’s then-new album making me dance Molly Ringwald-style in my kitchen.”
Newhouse’s video quickly snowballed into a meme. Dozens of copycat clips were uploaded to YouTube, all featuring people doing The Breakfast Club dance to “Lisztomania,” including Ocasio-Cortez at Boston University. One of the earliest videos is from a group of dancers who filmed themselves on a roof in Brooklyn; their take was uploaded only several months after the original. According to Newhouse, Phoenix thought the video and subsequent mashups were great. “Oh, they loved it, they offered to have me come to a show and meetup, but they weren’t playing anywhere nearby at the time, so that never happened,” she said.
This is where the copyright law portion of the story begins, which was first brought to WIRED’s attention by Parker Higgins. Back in 2013, Lawrence Lessig, a Harvard Law School professor and longtime copyright reform activist, uploaded a video to YouTube of a talk he had given at a Creative Commons even two years prior. It featured several of the Breakfast Club/Phoenix mashups, to help illustrate the point that “remixing” is an important part of culture.
Liberation Music, Phoenix’s record label, soon served Lessig with a takedown request under the Digital Millennium Copyright Act, demanding the video be taken down for violating its copyright for “Lisztomania.” Lessig quickly filed a DMCA counter-notice, arguing the his video constitutes “fair use,” since the song was excerpted for educational purposes—ironically to teach people about why copyright laws can stand in the way of cultural production. (This wasn’t even the first time a company had gone after the “Lisztomania” mashups. In 2010, Julian Sanchez uploaded a video to YouTube about the cultural importance of “remix culture,” which also featured the Brat Pack/Phoenix mashups. It also received a takedown request.)
Liberation Music threatened to sue Lessig, were he not to retract his counter-notice within 72 hours. Lessig then teamed up with the nonprofit Electronic Frontier Foundation to file another lawsuit, which Liberation Music settled for an undisclosed sum the next year. The record label also promised to adopt new policies that respect fair use. In this case, proponents of the freedom to remix, like Lessig and the EFF, won. But were Liberation Music to have gone after less copyright-savvy YouTube users, it may have been more successful in getting clips that featured “Lisztomania” removed. For instance, the video featuring Ocasio-Cortez may have been lost, erasing a small part of the story of an historic congressperson.
The WIRED Guide to Memes
Similar DMCA takedown requests are regularly issued to YouTube users and those of other social media sites. Video game companies have also issued DMCA takedowns against streamers, for instance. “The real danger of overzealous copyright enforcement isn’t usually from targeted attempts to silence speech (although those happen to), it’s from the Kafkaesque scattershot approach of just taking things down without caring about the consequences. The Lessig stuff definitely fell into that latter camp,” says Higgins, who worked at the Electronic Frontier Foundation during the time of Lessig’s case and is now at the Freedom of the Press Foundation. The problem also extends far beyond just YouTube mashups.
Copyright policy often policies the expression of underrepresented groups, says Higgins, making it more difficult for them to freely create art. For example, judges have previously hindered hip-hop musicians from sampling other music in their work, an integral feature of the genre. “For a decade or so, courts basically put forth an interpretation of copyright law that said this whole art form that was being created and shaped and enjoyed by black communities was basically illegal, and that there was no way to make it legal without getting permission from (largely white) artists and record label executives,” he explains. Three songs on the 1994 Notorious B.I.G. album Ready to Die no longer feature samples after two record labels won a lawsuit in 2006, for example.
Meanwhile, Newhouse, who created the original Breakfast Club/Phoenix mashup, says her entire YouTube account has since been deleted—for copyright infringement. “It was a three strikes rule, I got three copyright claims and poof!”