Sunday, April 19, 2009

CNN, YouTube, and fair use: a copyright advocate's perspective

CNN's DMCA takedown notice directed at a YouTube video criticizing reporter Susan Roesgen's contentious interviews at an April 15 "Tea Party" rally in Chicago has ignited a firestorm in the conservative blogosphere. Led by Patterico, multiple bloggers have re-posted the video at issue, which includes CNN footage of Roesgen interviewing protesters, as well as footage shot by the blog "Founding Bloggers," in which rally participants confront Roesgen and take issue with her reporting. Given the prominence this incident has achieved, I wanted to elaborate a bit on the legal issues it raises.



It bears repeating that one can be a strong supporter of copyright and still respect the fair use doctrine; there is no contradiction. Anyone who takes five minutes to peruse this blog will see that I am an unambiguous supporter of copyright. I have worked as an anti-piracy lawyer at a large law firm and a major movie studio, and I did it not just to pay the rent, but because I believed in what I was doing (and still do). And I write this blog, pro bono, as an honest expression of my opinions. So when I see a copyright owner making what I believe to be a mistake, I have no problem saying so.

Fair use exists. It is an important part of copyright law. It allows a reviewer to quote a few sentences of a book in his review, or a blogger to quote from a news story, or a parodist to lampoon a song. It allows copyright to coexist with the First Amendment, and for critics to use a work that the owner would never license. Reasonable people can, and often do, disagree about the scope of fair use. No doubt I have a narrower view of the doctrine than some others. But it's indisputable that fair use is a vital aspect of copyright.

Those who say major media companies don't believe in fair use simply don't know what they're talking about. Major media companies rely on fair use every day. Movie and TV studios do. So do news organizations. When network X shows a clip from network Y, sometimes it's licensed, but just as often it's not, and that's usually perfectly fine -- because of fair use. I watch a lot of CNN, and countless times I've seen "Internet reporter" Abbi Tatton incorporate just-posted YouTube videos into her pieces. Do you think CNN negotiates licenses for each one? Of course not; it relies on the fair use doctrine, as do all news organizations.

Many fair use issues are hard, close calls. Fair use has vast areas of gray. But there are also areas of black and white. Include a short clip of a movie in a video review or documentary? Fair use. Camcord a movie in a theater and put it out on BitTorrent? Not fair use. Incorporate 1 minute, 20 seconds of CNN footage depicting a reporter interviewing protesters in a hostile manner, juxtaposed with 2 minutes, 30 seconds of non-CNN footage in which protesters complain directly to the reporter about her interviewing techniques, interspersed with explanatory slides, and posted by a political blog for the clear purpose of media criticism and political advocacy? Fair use -- as I think just about anyone on any point of the copyright policy spectrum should agree. See 17 U.S.C. § 107 (mentioning "criticism, comment, [and] news reporting" as among core examples of fair uses).

This CNN incident is not about politics. Conservatives are understandably up in arms because they're angry over CNN's reporting on the Tea Parties, and they believe (with justification, I think) that CNN's takedown was an effort to suppress a video that made the network look bad. But liberals certainly weren't happy when YouTube took down an Obama campaign video at NBC's request during last year's campaign. When YouTube receives a facially valid DMCA takedown notice, it complies, whether the sender is liberal, conservative, or vegetarian. One can argue that YouTube should conduct legal analysis of copyright claims before acting on them, but it is understandable that they instead take the safe legal route and remove all videos promptly on request. One must remember that YouTube provides a valuable service for free, and it has its own First Amendment right to host, not host, or remove any videos it chooses. Criticism over this takedown is properly directed at CNN, not YouTube (or its parent Google).

How will this incident play out? I can't say for sure, but I do suspect CNN will soon realize that any effort to scrub the Internet of the footage at issue is futile. Thanks to Patterico and others, multiple copies of the the video are now hosted at multiple sites, and I'm sure the anti-piracy people at CNN and parent Time Warner have much bigger fish to fry than to chase after every last one of them. The best result from this imbroglio will be for cool heads to prevail, and for this incident to remind copyright owners that overly-aggressive YouTube takedowns, especially on hot political topics, are not just futile, but are contrary to their own interests. Major copyright owners are much more often copyright defendants than plaintiffs, and fair use more often their friend than their enemy.

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