Friday, April 24, 2009

Founding Bloggers v. CNN: counternotice submitted; countdown to re-posting -- or a lawsuit

Founding Bloggers, the conservative web site that had its video critical of CNN's reporting on a Chicago "tea party" removed by YouTube after the cable network sent a DMCA takedown notice, is not backing down. On Thursday, Founding Bloggers submitted a DMCA counternotice to YouTube, starting the clock ticking toward a possible re-posting by YouTube -- or a lawsuit that could establish important legal precedent regarding the contours of copyright law's fair use doctrine, especially as it applies to use of news video by political bloggers. "We're not going to let this just go away," Andrew Marcus of Founding Bloggers told C&C in an interview earlier today.

As I've previously argued, the video at issue -- which 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 Founding Bloggers -- is a non-infringing fair use of CNN's material; thus I believe the DMCA notice was improper. CNN owns copyright in its own footage, but its rights are limited by the Copyright Act's fair use provision, which specifically mentions "criticism, comment, [and] news reporting" as protected uses that are "not an infringement of copyright." Founding Bloggers' incorporation of the CNN footage was clearly for the purpose of criticizing and commenting on Roesgen's reporting, which has come under heavy fire in the conservative blogosphere (and even from a former CNN reporter) for her hostile interactions with tea-partiers.

So what happens next? Here's how YouTube explains the process:

After we receive your counter-notification, we will forward it to the party who submitted the original claim of copyright infringement.... After we send out the counter-notification, the claimant [here, CNN] must then notify us within 10 days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material on YouTube. If we receive such notification we will be unable to restore the material. If we do not receive such notification, we may reinstate the material.

In my experience, YouTube does indeed re-post videos 10 business days after receiving a counternotice, unless the copyright owner initiates a lawsuit.

So, CNN could sue Founding Bloggers for copyright infringement -- but I consider that unlikely. CNN's lawyers know the law of fair use, and that they would be unlikely to prevail in an infringement suit against Founding Bloggers. And remember: CNN -- like all TV news organizations -- relies heavily on fair use every day, using clips from competitors, and even YouTube, in its own broadcasts. So even a "victory" over Founding Bloggers would result in long-term damage to CNN's own interests.

Founding Bloggers could also sue CNN. Section 512(f) of the DMCA allows the target of a takedown notice to seek damages, including costs and attorneys’ fees, against the sender for "knowingly materially misrepresent[ing] ... that material or activity is infringing." While such cases are difficult to win, one court has held that the sender must take into account fair use when deciding whether to issue a takedown notice. Founding Bloggers can also sue for a declaratory judgment, asking a court to issue an order stating that its video is a non-infringing fair use.

As a practical matter, it may not matter all that much whether Founding Bloggers' particular copy of its video is re-posted by YouTube. Urged on by Patterico, numerous others have re-posted the same video, making it exceedingly difficult for CNN to scrub the net of the offending video. And today Founding Bloggers posted a new, longer video critical of the mainstream media's (including CNN's and MSNBC's) coverage of the Tea Parties. Founding Bloggers' new video incorporates some of the same CNN footage of Roesgen that was in the earlier, removed video -- but this time that footage was cleverly taken from an episode of Glenn Beck's show on Fox News, which (like Founding Bloggers) was making fair use of the CNN footage to criticize Roesgen's coverage (starting about 27 seconds in):

Here's Founding Bloggers' counternotice, prepared by its attorney David Adler of Adler & Franczyk in Chicago:

While this does appear to be a sufficient counternotice, I must admit I'm confused by the letter's statement that, under the Io Group v. Veoh Networks decision, "YouTube had an affirmative duty to investigate the availability of the Fair Use defense." I do not read Io Group as imposing such a duty on YouTube, but am open to hearing arguments to the contrary.

Founding Bloggers' Marcus does not seem like the type walk away quietly; he told me he's motivated by "principle," and not just the desire to get his video re-posted. If this dispute does make it to court, I wouldn't bet against him.


  1. CNN could have easily stopped all of this by simply acknowledging that their reporting was over the line. If you watched the original clip, even when Ms. Roesgen went back to the studio, no one seemed to be aghast at what had just happened, they just nodded their heads in agreement.

    CNN has many more problems with fairness than it cares to admit so they don't want videos, such as this one, hanging out there pointing that out.

  2. I think people still don't understand fair use. And in this case, it is possible you are on the wrong end of such an argument. I believe where most people trip up on fair use is the amount and length of footage used. For example, if you watch how Comedy Central's The Daily Show uses news clippings, they are usually very brief. They don't play two minutes or more of CNN video straight through.

    What I've noticed is that what most people think is fair use, is not. Many pull out the "excerpt used for criticism or review" point, and then define "excerpt" to be as much of someone else's material as they want to use.

    The modern sense of entitlement to use large amounts of copyrighted material under the guise of freedom of speech is a very sad commentary on the current "cut and paste" generation.

  3. To Mr. Williams:

    I'm a strong supporter of copyright (I used to be an anti-piracy litigator at 20th Century Fox), and don't take an expansive view of fair use, but I think this is a clear case.

    Founding Bloggers used 1 minutes, 20 seconds of a CNN broadcast that I believe was an hour long. The amount taken was small -- and, importantly, it was *necessary* in order to make FB's point about Roesgen's reporting. In addition, keep in mind that the amount taken is only 1 of 4 fair use factors. And, as I explained in this post, all 4 of the factors favor FB:

  4. Not being a lawyer, I fail to understand the concept of protecting the intellectual property of a news event. The copywriter did not create the event, the event is not derived from the intellectual creation the the copywriter so what exactly is being protected? Had a Fox camera crew been present recording the CNN crew while they were recording Ms. Roesgen who is the author of the intellectual property? Indeed Ms. Roesgen by her actions became a news event every bit as much as the Tea party protestors themselves. Do the Tea Party protestors have copy write protections on who can use their material?

  5. To cubanbob:

    No one owns copyright in facts or events. However, news organizations *do* own copyright in the particular way they record the facts.

    "Had a Fox camera crew been present recording the CNN crew while they were recording Ms. Roesgen who is the author of the intellectual property?" If Fox recorded Roesgen's interaction with the crowd, Fox would own the copyright.

    This case has a pretty good analysis of copyright as it pertains to news footage:

  6. "So, CNN could sue Founding Bloggers for copyright infringement -- but I consider that unlikely."

    How could CNN sue Founding Bloggers? They're not the ones who would have published the infringing material -- YouTube would be.

    When Viacom sued for infringing material on YouTube, it sued YouTube. It didn't sue AshleyCutie86 or whoever.

  7. To Thomas:

    When you post to YouTube material whose copyright you don't own, you are probably violating the copyright owner's exclusive rights to reproduction, distribution, and public performance (absent some exception like fair use). Viacom certainly could have sued "AshleyCutie86" if she posted Viacom's material; it chose to go after what it views as the facilitator, rather than the vast number of individual infringers. And the copyright owner could theoretically sue *both* the uploader and YouTube (though YouTube may well be protected by the DMCA's safe harbors).

    In the Don Henley v. Chuck DeVore suit, Henley did sue the person who uploaded the offending videos to YouTube:

  8. "I think people still don't understand fair use. And in this case, it is possible you are on the wrong end of such an argument. I believe where most people trip up on fair use is the amount and length of footage used."

    While that is true, the amount copied is but one of four factors under 17 USC § 107 that must be weighed. And, as Ben Sheffner pointed out, the length posted here is important for understanding both the criticism and the news content of the footage.

  9. I never understood how video or audio that is broadcast freely can still be considered "owned" by the broadcaster.

    The very word "broadcast" seems to mean loss of ownership. The broadcaster is "casting" it away to points unknown. The intent is for as many people as possible to see or hear the "product" for free.

    Make up your minds--do you want to own and hold your product or throw it out there uncontrolled?

    The film industry could control its product by limiting film distribution to theaters. I see control there. When they put the product on broadcast TV, how can you say "I own that!"

    If a guy got in an airplane with a million dollars in $1 bills and flew over Los Angeles dribbling the dollars out the door, can he still say he owns the money?

  10. To Koblog:

    Section 106 of the Copyright Act grants the copyright owner certain exclusive rights, including the right to make copies, to distribute, and to publicly perform his work. The fact that the copyright owner exercises those rights (by, say, broadcasting his TV show) does not mean he has given up his copyright.

    Let's say Warner Bros. produces a TV show. It might then license that show to ABC, giving ABC the right to broadcast the show (in exchange for a fee). The fact that the show has already been broadcast does not give CBS (or even YouTube) the right to broadcast that show without a license.

  11. Ben Sheffner,

    I understand that copyright laws have been written and passed.

    I simply find it interesting that the overriding desire of outlets like CNN, musicians and film makers is for "ratings" that prove how popular they are.

    They achieve these ratings (except for first run movies in theaters) by broadcasting their product and hoping as many as possible tune in. After all, radio and TV broadcast in 360 degrees to an unknown audience. And cable- or satellite-supplied content has competition for audience within the paying subscribers, who can choose from 500 or more channels at any given moment.

    In the case of CNN and other “news” organizations, they wrap themselves into a protective cocoon called “journalism” that gives them the “right” to invade peoples’ privacy and destroy with impunity according to their agenda. If someone gets hurt, too bad. “The public has a right to know!”

    They base this right to invade peoples’ space by running up to them at public events, jamming a mic and camera in their face without securing releases from their victims and then broadcasting their product with impunity. Do not the people in the street they interview have the right to the “content” they are producing for CNN’s financial and ratings goals? No.

    If the subject of the news has no exclusive copyright to what CNN does with their image and words, why should CNN be afforded the same copyright protection simply because their product is broadcast?

    It’s very telling that the “journalists” at CNN scream copyright infringement when the very citizens targeted by CNN for destruction use CNN’s product to produce something the public has the right to know.

  12. I find it odd to hold up The Daily Show as an example, considering that they tend to show brief clips for the express purpose of removing them from context. Would it be better to just use the 10 seconds of Roesgen berating the guy? Wouldn't people complain that it was taken out of context?

  13. Just a point about the complainant suing the service provider rather than the individual who uploaded the content: despite (in my opinion) the flawed nature of the DMCA, it has a safe haven provision for the provider (in this case YouTube, in others, web hosts). As long as the service provider follows the steps outlined - remove the content, contact the user to inform them, receive and forward any counterclaim, then permit reposting if no notice is served by the complainant of an injunction prohibiting it or of action against the original poster of the material - the service provider has itself done its part to abide by the DMCA and won't be a party to whatever action is taken by the complainant (short of the basic things, like providing logs if subpoenaed, and so on).

  14. To Anonymous 8:54:

    You are correct, though it's worth noting that not all accept that YouTube is protected by the Section 512(c) DMCA safe harbor. Viacom and YouTube are litigating that issue right now:


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