CNN makes copyright claim on video critical of reporter's 'Tea Party' interviews; a clear case of fair use?

CNN has sent YouTube a DMCA takedown notice on a video critical of a CNN reporter for her coverage of a "Tea Party" protest -- a video that appears to be a clear case of a non-infringing fair use. The video includes about 1 minute, 20 seconds of CNN footage of reporter Susan Roesgen conducting contentious interviews with protesters at an April 15 Chicago rally, as well as about 2 minutes, 30 seconds of footage shot by someone affiliated with the conservative blog "Founding Bloggers" in which protesters complain directly to Roesgen about her interviewing technique.
According to Founding Bloggers, the same video removed upon CNN's demand was previously captured and re-posted by someone else:



CNN does own copyright in its own news footage and, as a general matter, has the right to demand its removal from YouTube. However, as to this particular video, I think Founding Bloggers has a very strong fair use defense. The purpose for Founding Bloggers' posting of the CNN footage is crystal clear: to comment on and criticize CNN's reporting on the "Tea Party." Such a use is right in the heartland of the fair use doctrine; the statute specifically mentions "criticism, comment, [and] news reporting" as protected uses that are "not an infringement of copyright." 17 U.S.C. § 107. To quickly run through the four fair use factors as they apply here: 1) the use is transformative (for critical comment); 2) the CNN footage is factual, not fictional, and was previously broadcast; 3) the amount used is small in relation to the whole CNN broadcast; and 4) any effect on the market is minuscule (and if fewer people watch CNN because this video causes them to think less of its coverage, that's simply not cognizable harm). Many fair use cases are difficult, close calls--but, given the facts as I know them, this is an easy one.

What can Founding Bloggers do? File a DMCA counternotice. (UPDATE: Founding Bloggers says it's considering doing just that.) Unless CNN sues within 10-14 business days, YouTube will re-post the original video. Will CNN sue? I can't say for sure, and I'm certainly not giving anyone legal advice here, but, given what I know now, I think it would be a terrible idea. First, as noted above, Founding Bloggers would have a very strong fair use defense. Second, a "victory" for CNN in a fair use fight with Founding Bloggers over this video would be strongly contrary to CNN's long-term interests. CNN--like all TV news organizations--relies heavily on fair use every day, using clips from competitors, and even YouTube, in its own broadcasts. (Founding Bloggers could also bring a lawsuit against CNN for misrepresentation under 17 U.S.C. §512(f), though such suits are difficult to win, and the available damages would be minimal.)

The last thing CNN should want is a precedent that says such common uses would subject it to lawsuits. I'm surprised CNN made this claim in the first place.

UPDATE: Blogger Patterico is on the case. He has uploaded a copy of the video to YouTube himself, is encouraging his readers to do the same, and says he may file a DMCA counternotice if CNN attempts to have his copy removed: "If CNN wants to sue me, we can make this a test case."