This time the victim is Stand for Marriage Maine, a group that supports Question 1, a Nov. 3 ballot measure that would overturn the Maine legislature's legalization of same-sex marriage. And the culprit is National Public Radio, which has sent DMCA notices to YouTube and other sites, objecting to the inclusion of 20 seconds from a 2004 NPR story into a 30-second SFMM TV spot. The ad uses the NPR content in support of its argument that legalization of SSM would result in schoolchildren being taught about gay sex.
While the issue isn't quite as much of a slam dunk as Perez Hilton's copyright claims over the use of 3 seconds of his video blog in an anti-SSM ad by a different group, I think SFMM has a very strong fair use claim here. The use is non-commercial (it is purely political); NPR's work is factual, not fictional; the portion used is brief; and such a use will have no significant effect on the market for NPR's work. And, importantly, the First Amendment is at its apogee in the context of a political campaign. See Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971) (First Amendment "has its fullest and most urgent application precisely to the conduct of campaigns for political office"). Here's NPR's cease-and-desist letter; here's the letter from SFMM attorney Barry Bostrom rejecting NPR's copyright claims. (Sound familiar?)
NPR's attempted defense of its copyright claim only proves its lack of merit. Here's what Dana Davis Rehm, NPR's senior vice president of marketing, communications and external relations, told WMTW:
NPR very carefully analyzed the use that Stand for Marriage Maine and their public relations firm Schubert Flint has made of NPR's 2004 news story. We determined that it does not meet fair use standards and that it constitutes copyright infringement. They have exceeded fair use standards by co-opting NPR's content for virtually the entire length of their political ad. What we are seeking to do here is to protect NPR's valuable reputation as a trusted and unbiased source of news. We don't allow use of our content for advocacy or political purposes by any group or person.Rehm is simply wrong on the law. First, she gets the fair use analysis completely backwards when she argues that SFMM's use of the NPR content comprising "virtually the entire length of their political ad" weighs against a finding of fair use. What matters is the percentage of the copyright owner's work that is taken, not the percentage of the use that is comprised of the copyright owner's work. See 17 U.S.C. § 107(3) (relevant measure is "the amount and substantiality of the portion used in relation to the copyrighted work as a whole") (my emphasis); Peter Letterese And Associates, Inc. v. World Institute Of Scientology Enterprises, 533 F.3d 1287, 1314-15 (11th Cir. 2008) ("[T]he amount and substantiality of the portion used is measured with respect to the 'copyrighted work as a whole,' not to the putatively infringing work.") (quotation marks omitted); NXIVM Corp. v. Ross Institute, 364 F.3d 471, 480 (2d Cir. 2004); Patry on Copyright § 10:141 ("The statutory language clearly directs courts to evaluate the substantially of the taking in relation to plaintiff's work, not defendant's."). The fact that the NPR content is heard through about 2/3 of the ad is irrelevant to the fair use analysis. What matters is that SFMM used only 20 seconds of an NPR report that was apparently several minutes long. Update: according to SFFM attorney Bostrom, "the ad used 20 seconds of a nearly 6:56 minute news piece, or 4.8%." NPR's letter contends it was 25 seconds; I don't think the difference is material.
And Rehm's argument that the aim of NPR's copyright claim was to "protect NPR's valuable reputation as a trusted and unbiased source of news" and statement that "We don't allow use of our content for advocacy or political purposes by any group or person" further aids SFMM's fair use case, and undermines NPR's argument. "Protecting [one's] reputation" is not a cognizable copyright interest, at least in the US, where we don't recognize moral rights. Copyright is about providing financial incentives for creators, not for providing a legal club for anyone -- even a purportedly "trusted and unbiased source[s] of news" -- to shut down uses of their works that they don't like. And the fact that NPR would refuse to allow any such use of its content in a political ad strengthens the case for fair use. See Campbell v. Acuff-Rose, 510 U.S. 549, 585 n.18 (1994) ("being denied permission to use a work does not weigh against a finding of fair use"); Liebovitz v. Paramount Pictures Corp., 137 F.3d 109, 114 n.3 (2d Cir. 1998). Rehm's words may come back to haunt NPR if this matter is ever litigated.
NPR's takedowns are especially harmful because even if SFMM sends DMCA counternotices, sites generally won't repost the videos until 10-14 business days have elapsed, in order to maintain their safe harbor from an infringement claim. See 17 U.S.C. sec. 512(g). Thus the videos won't reappear until well after the Nov. 3 election. So NPR's copyright claims, even if meritless, will achieve their intended, speech-silencing, effect. (We complained about this to YouTube while I was an attorney on the McCain campaign last year, to no avail.)
Lastly, kudos to the Queerty blog, which strongly supports SSM, but nonetheless opposes NPR's use of copyright law to squelch political speech:
As despicable as S4MM is, the group very likely did nothing illegal. They used a limited portion of NPR's news report that did not adversely affect NPR financially. Not only does S4MM not have to seek permission to use it, they should be able to do it again if they so please. It's the equivalent of a movie studio "borrowing" a few lines of copy from an Entertainment Weekly movie review to convince you to see their film. S4MM used a few lines (of audio) from NPR to try to bolster their case to voters.It's easy to complain when your own side is being abused; it shows real intellectual honesty to stand up for your bitter opponent when they're in the right.
Here's the SFMM ad, which was apparently re-posted by someone unknown. If NPR takes this version down, it will be squelching legal analysis, in addition to core political speech. I wonder how Nina Totenberg would feel about that?